FYBEL, J.
Defendant John Francis McShane appeals after a jury found him guilty of committing the offense of making criminal threats in violation of Penal Code section 422. (All further statutory references are to the Penal Code.) Defendant contends insufficient evidence supported his conviction. He also contends the trial court erred at the sentencing hearing by entering a criminal protective order under section 136.2 (the section 136.2 protective order) once the matter was no longer pending.
As discussed in detail post, more than substantial evidence supported defendant's conviction for committing the offense of making criminal threats. As conceded by the Attorney General, however, the trial court was without authority to issue the section 136.2 protective order. We therefore strike the section 136.2 protective order, but otherwise affirm the judgment as so modified in its entirety. Because some form of protective order appears to be appropriate under the circumstances of this case, we remand to the trial court with directions to conduct a hearing to determine whether any other form of protective order should be issued.
In 1999, defendant married Tracey McShane
Defendant showed Tracey guns and ammunition that he kept in their home and threatened her with them. She saw him fire a gun on one occasion.
Defendant had a quick temper. In 2005, after defendant had a "falling-out" with his former business partner, he was arrested for having a loaded gun in his car. In 2006, defendant followed a person home after "an incident of road rage"; Johnny was in the car at the time.
Tracey discussed with defendant how they were not getting along. Defendant told her, "you can leave, but you're not leaving with my son." Tracey was afraid she would be unable to leave with her son.
One evening in May 2006, after Tracey and Johnny returned home from a neighbor's party, defendant said something "nasty" to Tracey because she could not get the cable box to work. Apparently, defendant did not like Tracey's response because he followed her into the bedroom, kneeled over her on the bed, put his hands around her neck, and squeezed. He hit her in the nose, causing it to bleed. Tracey thought defendant was going to kill her. After she was able to get away from defendant, he told her not to call the police. She ran downstairs and called the police anyway, and was instructed to wait outside until the police arrived; she complied.
After the police arrived, defendant reported that Tracey had hit him and Tracey was arrested. After Tracey was released from jail the following morning, defendant told her that he had scratched his arms and chest to make it look to the police as if Tracey had attacked him. He told Tracey he felt bad about what he had done and explained he feared he would have been thrown in jail.
In July 2006, Tracey separated from defendant and she filed for a divorce in December 2007.
In a July 2007 e-mail, defendant wrote to Tracey: "I promise in the short run you and your family may find it funny to play with my son, yet that would be a big mistake for you. I will get my son and do to you what you have done to me, only worse."
In an August 2007 e-mail, defendant wrote: "But for that one night we fought, I will never hit you. But that [I] have a rage problem that I have had since being a young boy and was compensated for with alcohol. [Sic] Now I know I need the medication. The doctor is working on how much and what kinds, yet they all arrive at the same conclusion that I have bipolar disorder where I go through stages of depression and mania, which you have lived with, and periods of excitement and euphoria, also you have lived with. Yet, when I am hurt, my only defense is out of fear of abandonment or losing you is retaliation with anger and in talking with my Christian counselor of the rage/anger I have towards others and you."
In another August 2007 e-mail, defendant stated: "Regardless, I choked you, not intending to harm you but to get your intention [sic]. I truly felt like the monster in the movie `Of Mice and Men' as I accidentally could have killed you when all I wanted was to talk things through, and I should have just let you sleep off your buzz and talked to you about it the next day. Well, to my surprise, you called the police. I marked myself up and told them that you came home drunk, we had a lover's spat, and you thought the police always arrest the male. I'm learning ways to handle my rage/anger."
In an e-mail sent in September 2007, defendant wrote: "Let me talk to me fucking son of a bitch." In an e-mail also written in September, defendant wrote: "In talking to my counselor, she told me to explain to you that I am not coming home to hurt you. At some point you are going to have to deal with your fears."
In a November 2007 e-mail, defendant stated: "I do not want or will let Johnny growing up with another man in my place, so your dating is unacceptable to me." Tracey testified she had not started dating, and did not know what defendant was referring to. The following day, defendant sent an e-mail discussing the benefit of using corporal punishment in disciplining children.
In an e-mail dated December 22, 2007, with a subject line stating "[g]oodbye," defendant wrote to Tracey and others: "I am getting really hungry, sick, lonely, tired. A.A. [Alcoholics Anonymous] is not working and I am just tired of being tired. Please let my son know how much I love and loved him. I love each of you . . . . You have tried to help me, yet whatever disease I have with the alcoholism [ha]s just been killing me slowly. I believe Tracey will get my social security to help her with income for Johnny. He's the most important thing I have ever laid my eyes on. I never understand why [defendant's sister] had the doctor stop giving me my meds. Regardless, I have gone crazy and I'm not the son you want or should know anymore. I want all of you to know I believe I've tried everything, but I'm finally and literally am at the end of the road. Love John."
In the summer of 2008, defendant moved in with his father and stepmother in Corpus Christi, Texas. Defendant's father testified that one afternoon, defendant stated he was going to kill Tracey and also see to it that Tracey's family never had the opportunity to get Johnny. He referred to Tracey as "a bitch" or "the bitch." Defendant stated he was never going to spend any time in jail because he would commit suicide by cop.
Defendant received treatment for mental health problems that summer. He did Internet research on his mental health issues. He said he could never be charged with killing Tracey because "they" could prove he was mentally ill or insane. When asked whether he was scared defendant might follow through on his threat to kill Tracey, defendant's father testified, "[d]efinitely, yes." He testified that he, along with the entire family, was afraid of defendant.
In an e-mail dated September 6, 2008, defendant wrote to Tracey: "The smartest thing to do was leave Johnny with you. I had some horrible tendencies towards antisocial personality disorder and bipolar line disorder. I am a bipolar manic depressive. Sad to say it seems that the only outcome is suicide. I think your fears should be put to rest. I'm not going to hurt you. I don't want to steal Johnny. I just want to be the best dad and, if possible, husband I could be." Tracey testified defendant also expressed his desire to return to California and stay with her and Johnny until he found a job and got back on his feet.
Tracey testified defendant's conciliatory tone did not move her. She explained, "due to his bipolar disorder, one day I could be the most wonderful person and the next day I was an f'ing bitch." On September 8, 2008, Tracey wrote to defendant: "John, I am sorry but I am not the solution to your problems. I can never live under the same roof as you. I am so emotionally destroyed by living with you over the years, I don't think I'll ever be able to share my life with anyone again. You have done enough damage to me for a lifetime." Defendant wrote back: "Laugh now, bitch, but take care of our—but take care of our boy or I will."
On September 26, 2008, defendant's stepmother called Tracey and warned her that after she and defendant's father came home from the market, they discovered defendant and all of his things were gone. Defendant's father was worried. Days earlier, defendant told his father he was going to get a gun. Defendant had not told them he was leaving or where he was going.
On September 28, 2008, Tracey checked Johnny into her church's children's building before attending the 9:00 a.m. service. As she walked out of the building after the service had concluded, she saw defendant standing with his hands in his pockets and smiling at her. He walked over to her and said, "I want to see my fucking son." He appeared "a little agitated." Tracey was afraid and said, "okay."
Tracey and defendant walked to the children's building to pick up Johnny. After checking him out, defendant, Tracey, and Johnny walked down a path and then defendant told Johnny to go play in the grass because he wanted to talk to Tracey. He told Tracey to sit on a big rock in the area and to sit closer to him so that no one could hear him. Tracey testified defendant said, "he had been in and out of mental hospitals for the past year and that he was back in town and that if [she] fucked with him, he'd put a bullet through [her] forehead. He told [her] that he was—he dotted all of his i's, he crossed his t's, and he'd been investigating, you know, mental illness and—and murder." Defendant was "very calm, cool, and collect[ed] about it."
Tracey testified she felt "[p]etrified." She was in fear for her safety and Johnny's safety. Defendant then told her that if she contacted law enforcement "that he was there" or that he had threatened her, he would hurt her and "take Johnny and run."
Tracey thought defendant was upset because she would not change their custody arrangement to joint custody. She knew defendant had a "hit list of people that he wanted to take out and, you know, he said he would follow through and then have the police kill him and that way he wouldn't go to hell because he didn't kill himself."
Defendant then told Tracey he wanted to take Johnny to a playground and throw a football around. She agreed because she was afraid; she testified, "[i]t's very hard to say no to him because he would have taken him anyway" and "[h]e doesn't do well with the word `no.'" She asked defendant to bring Johnny home by 1:00 p.m.; he agreed. After defendant and Johnny left, Tracey "then . . . got hysterical crying."
One of Tracey's neighbors, who attended the same service that morning, saw defendant and Johnny leave and Tracey "crouched down, sitting on a step, just completely shaking, hysterically crying." He was aware of Tracey's history with defendant. He testified Tracey told him: "John is here and he's taken my son." The neighbor offered to go get Johnny but Tracey said: "[N]o. He'll kill you." She told him defendant had said he was going to kill her. The neighbor testified Tracey "said that she was scared to death." The neighbor told Tracey to call the police, but she said she could not because defendant would kill her. Tracey was also afraid to call the police in light of her past experience in calling the police and "things not going the way that [she] thought they should have gone."
Defendant brought Johnny home on time. Defendant asked to use the bathroom; Tracey let him into the house.
The next day, defendant called Tracey at work and told her he was picking up Johnny from school. Defendant arrived on the school campus before the schoolday ended. He yelled and screamed at Johnny's teacher while she explained the school's policy requiring parents to check in at the office. The teacher testified she felt threatened by his behavior. The teacher later contacted Tracey and told her what had happened. Tracey went to a domestic violence shelter to get advice.
Defendant brought Johnny home later that day. Tracey noticed defendant was wearing the same clothes he had been wearing the day before. Johnny told Tracey defendant said he had been sleeping in his car and he did not have any money. Johnny also asked Tracey what a foster home was like and whether jail was nice and had pillows.
The following day, Tracey asked defendant why Johnny was asking about foster care and jail. Defendant stated: "Because I told your son that—I told Johnny that you're going to be in jail." Defendant called Tracey a drunk and said she would be in jail for driving under the influence.
Defendant stated he wanted to pick up Johnny from school again that day. Tracey testified she could see that "things were escalating," which made her very nervous. She believed defendant was going to kill her. She left work, went to the police department, told an officer what had happened over the past few days, and obtained an emergency protective order. The police went to Johnny's school, took him out of school early, and brought him to Tracey. Defendant was arrested that day.
Defendant and Tracey were divorced in October 2008; Tracey was granted full legal and physical custody of Johnny.
Defendant was charged in an information with having committed one count of making criminal threats in violation of section 422. The jury found defendant guilty as charged. The trial court sentenced defendant to the middle prison term of two years. Defendant filed a timely appeal.
Defendant contends his conviction for making criminal threats is not supported by substantial evidence because insufficient evidence showed his threats were "so unequivocal, unconditional, immediate, and specific" as to convey to Tracey "a gravity of purpose and an immediate prospect of execution of the threat[s]," which actually caused her "to be in sustained fear" for her safety. (§ 422.) Defendant's argument is without any merit.
To prove a violation of section 422, the prosecution must establish "(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. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Defendant contends insufficient evidence supports his conviction for making criminal threats because "[his] statement was conditional and there was no immediate prospect of him carrying it out." Defendant also contends insufficient evidence shows Tracey was in sustained fear for her life.
"`To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier "so" unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution.' [Citation.]" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433.) In People v. Hamlin, the court further stated: "`[I]t is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422.' [Citation.] The jury is `free to interpret the words spoken from all of the surrounding circumstances of the case.' [Citation.]" (Ibid.; People v. Bolin (1998) 18 Cal.4th 297, 339 [The term "unconditional" in section 422 "`was not meant to prohibit prosecution of all threats involving an "if" clause, but only to prohibit prosecution based on threats whose conditions precluded them from conveying a gravity of purpose and imminent prospect of execution'"].)
Although section 422 "also requires the threat to convey `"a gravity of purpose and an immediate prospect of execution of the threat,"' it `does not require an immediate ability to carry out the threat. [Citation.]' [Citations.] `The "immediate prospect of execution" in the context of a conditional threat is obviously to be distinguished from those cases dealing with threats of immediate harm, recognized at the very moment of the threat, such as those which support a defense of duress or necessity. [Citations.]' [Citation.] `How are we to understand the requirement that the prospect of execution be immediate, when, as we have seen, threats often have by their very nature some aspect of conditionality: A threat is made to convince the victim to do something "or else." . . . [W]e understand the word "immediate" to mean that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met.' [Citation.]" (People v. Wilson (2010) 186 Cal.App.4th 789, 807.) Furthermore, "`[i]t is clear that the nature of the threat cannot be determined only at face value. Section 422 demands that the purported threat be examined "on its face and under the circumstances in which it was made." The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat,' and such threats must be `judged in their context.' [Citations.] `[Section 422] does not concentrate on the precise words of the threat. Instead, the statute focuses on the effect of the threat on the victim, to wit, communication of a gravity of purpose and immediate prospect of execution of the threat. These impressions are as surely conveyed to a victim when the threatened harm is conditioned on an occurrence guaranteed to happen as when the threat is absolutely unconditional.' [Citation.]" (Ibid.)
Section 422 also requires "the victim `reasonably to be in sustained fear' for his or her own safety or the safety of his or her family. [Citation.] As used in the statute, `sustained' has been defined to mean `a period of time that extends beyond what is momentary, fleeting, or transitory. . . . The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear. [Citation.]' [Citation.]" (People v. Wilson, supra, 186 Cal.App.4th at p. 808.)
This is not a close case. More than substantial evidence showed defendant's threats were sufficiently unequivocal, unconditional, immediate and specific as to convey to Tracey a gravity of purpose and an immediate prospect of execution of the threats. Before September 2008, Tracey had endured years of threats and physical and emotional abuse by defendant during their marriage and separation. Defendant knew Tracey was aware he had (1) significant mental health problems; (2) owned guns; (3) expressed his "rage/anger" at her; and (4) wanted the custody arrangement to change. In addition, Tracey knew defendant had a hit list of people he wanted to "take out," and then commit suicide by provoking a police officer to kill him.
In the context of those circumstances, Tracey stated she felt great fear when she saw defendant waiting for her outside a church after the service on September 28, 2008. He appeared agitated and greeted her saying, "I want to see my fucking son." After signing Johnny out of the children's building, defendant directed Tracey to sit on a rock because he needed to talk to her and directed Johnny to play on the grass. He told Tracey to sit closer to him so that no one could hear what he was going to say to her. After setting this scene, thereby communicating a gravity of purpose in what he was about to say, defendant calmly proceeded to tell her "that he had been in and out of mental hospitals for the past year and that he was back in town and that if [she] fucked with him, he'd put a bullet through [her] forehead." He told her, "he dotted all of his i's, he crossed his t's, and he'd been investigating . . . mental illness and—and murder." He also threatened he would hurt her and "take Johnny and run" if she contacted the police.
This evidence strongly shows that defendant threatened to kill Tracey if she did not do what he told her to do. Tracey had every reason to think defendant had access to a gun and his reference to having researched a mental illness defense to a prosecution for her murder further supports the immediate prospect of the execution of his threat to kill her. There is no evidence suggesting otherwise.
Defendant's argument that insufficient evidence supports the finding Tracey experienced actual sustained fear borders on frivolous. She testified how afraid she was—so afraid, she felt she could not call the police and had no choice but to let defendant take Johnny. Immediately after defendant left with Johnny, Tracey told the neighbor she was "scared to death," and could not call the police because "he'll kill [her]." She urged the neighbor not to go retrieve Johnny because she thought defendant would kill the neighbor. Tracey's fear was further evidenced by the neighbor's description of Tracey's shaking and "hysterical[] crying."
Defendant argues the evidence shows Tracey was upset about his leaving with Johnny, not about his threats. As discussed ante, substantial evidence shows she was afraid defendant would kill her and she was upset and afraid for Johnny after defendant had left with him. Furthermore, that Tracey agreed to permit defendant to use the restroom after he brought Johnny home that day and to pick up Johnny from school the next day is not inconsistent with her being afraid defendant would carry out his threat to kill her. Tracey's fear was further evidenced by her acquiescence to defendant's demands. The record shows she did not want him in her house and did not want him to pick up Johnny from school—but was afraid to say no to defendant. She finally called the police when she realized defendant's requests were escalating and she could no longer go along with his demands.
In his opening brief, defendant cites In re Ricky T. (2001) 87 Cal.App.4th 1132 in support of his argument insufficient evidence shows Tracey's sustained fear. In re Ricky T. is inapposite. In that case, a high school student left his classroom to use the restroom. (Id. at p. 1135.) When he returned, the classroom door was locked. After he pounded on the door, the teacher opened the door which struck the student. (Ibid.) The student became angry, cursed the teacher, and threatened, "`I'm going to get you.'" (Ibid.) The teacher felt threatened and sent the student to the school office. (Ibid.)
The appellate court concluded insufficient evidence supported the juvenile court's finding the teacher was in sustained fear within the meaning of section 422 as a result of the student's conduct and statement. (In re Ricky T., supra, 87 Cal.App.4th at pp. 1140-1141.) The court stated that there was no evidence the teacher had knowledge of any prior threatening conduct by the student. (Id. at p. 1140.) The teacher admitted the threat was not specific. (Ibid.) The court further stated: "It is obvious that this mouthing off or posturing was not designed to coerce [the teacher] to do or not to do anything. There is no evidence that [the teacher] felt fear beyond the time of the angry utterances." (Ibid.)
As discussed in detail ante, Tracey had been the subject of emotional and physical abuse and threats by defendant for years. Defendant's threat to kill her was specific—he would put a bullet through her forehead. Defendant set the scene to convey his threat. Tracey testified about her fear of defendant. Hence, substantial evidence supports defendant's conviction for making criminal threats against Tracey.
At the sentencing hearing, the trial court issued the section 136.2 protective order. Defendant contends the section 136.2 protective order must be stricken because the trial court was without legal authority in issuing such an order. In the respondent's brief, the Attorney General concedes the section 136.2 protective order should be stricken. For the reasons we discuss post, we agree the section 136.2 protective order must be stricken.
Section 136.2, subdivision (a) provides in part that "upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, any court with jurisdiction over a criminal matter" may issue a restraining order against the defendant. "Although section 136.2 does not indicate on its face that the restraining orders it authorizes are limited to the pendency of the criminal action in which they are issued or to probation conditions, it is properly so construed. It authorizes injunctions only by courts with jurisdiction over criminal proceedings and is aimed at protecting only `victim[s] or witness[es],' an indication of its limited nature and focus on preserving the integrity of the administration of criminal court proceedings and protecting those participating in them. This is in stark contrast to Code of Civil Procedure section 527.6 which is applicable to protect any `person who has suffered harassment,' harassment defined in that section as `unlawful violence [or] credible threat of violence.' The narrower scope of section 136.2 suggests that the Legislature did not intend it to authorize restraining orders beyond those germane to the proceedings before the criminal court." (People v. Stone (2004) 123 Cal.App.4th 153, 159 (Stone); see People v. Selga (2008) 162 Cal.App.4th 113, 118-119 ["Because the only purpose of orders under section 136.2 `is to protect victims and witnesses in connection with the criminal proceeding in which the restraining order is issued in order to allow participation without fear of reprisal,' the duration of such an order `is limited by the purposes it seeks to accomplish in the criminal proceeding'" and, thus, such orders are "operative only during the pendency of the criminal proceedings and as prejudgment orders"].)
In Stone, supra, 123 Cal.App.4th at page 159, the appellate court stated its conclusion section 136.2 has a narrow application was "further corroborated by the placement of section 136.2 in title 7, entitled `Of Crimes Against Public Justice,' Chapter 6, entitled `Falsifying Evidence, and Bribing, Influencing, Intimidating or Threatening Witnesses,' of the Penal Code. Section 136.1, immediately preceding section 136.2, deals with intimidation of witnesses and victims. This placement of section 136.2 reinforces our conclusion that its only purpose is to protect victims and witnesses in connection with the criminal proceeding in which the restraining order is issued in order to allow participation without fear of reprisal." The appellate court further explained, "[a]dditionally, the absence of any express time limitation on the duration of a restraining order issued under section 136.2 suggests that its duration is limited by the purpose it seeks to accomplish in the criminal proceeding. If not so limited, restraining orders under section 136.2 would usurp the similar restraining orders obtainable under Code of Civil Procedure section 527.6, and undermine the numerous procedural protections for the restrainee afforded by that section. The lack of such protections in section 136.2 is further evidence that its sweep is more narrow. [¶] Finally, nothing in section 136.2 suggests an intention that it supplant Code of Civil Procedure section 527.6, or other injunction statutes." (Id. at pp. 159-160, fn. omitted.)
The Stone court concluded, "[h]ere, the restraining orders were issued for three years. They were not limited to the pendency of the criminal proceeding and were not a probation condition, as appellant was not given probation. The restraining orders therefore transcended the authorization of section 136.2 and must be reversed." (Stone, supra, 123 Cal.App.4th p. 160.)
In People v. Ponce (2009) 173 Cal.App.4th 378, 383, citing Stone, supra, 123 Cal.App.4th 153 and People v. Selga, supra, 162 Cal.App.4th 113, the appellate court concluded the trial court erred by issuing a three-year protective order against the defendant under section 136.2 at the sentencing hearing because "section 136.2 protective orders are `operative only during the pendency of criminal proceedings.'"
Here, as in People v. Ponce, supra, 173 Cal.App.4th at page 383, at the sentencing hearing, upon the prosecutor's request, the trial court issued the section 136.2 protective order. Because the criminal proceedings were concluding and defendant was not given probation but was sentenced to two years in prison, the section 136.2 protective order "transcended the authorization of section 136.2" and must be stricken as conceded by the Attorney General. (Stone, supra, 123 Cal.App.4th at p. 160.)
Our record does not disclose what other types of protective orders, if any, are in effect in this case. We agree with the trial court's conclusion that some kind of protective order appears to be appropriate under the serious circumstances of this case. We therefore remand the matter to the trial court for the limited purpose of conducting a hearing to determine whether any other form of protective order is available and should be issued in this case.
The section 136.2 protective order is stricken. The judgment as so modified is otherwise affirmed in all respects. We remand to the trial court to conduct a hearing to determine whether any other form of protective order is available and should be issued in this case.
WE CONCUR:
MOORE, ACTING P. J.
ARONSON, J.
