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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              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.)



                                             2.
                                    BACKGROUND
I.     Prosecution evidence
       A.     Officer Craig Howard—Count 1
       Fresno police officer Craig Howard was off duty and at home on May 18, 2010,
when he received a message left on his personal cellular telephone. The message was left
from a blocked number and it stated, “I’m going to take out as many of you mother
fuckers as I fucking want. Fuck you[,] FPD[,] I’m going [sic] fucking kill as many of
you mother fuckers as I want.” Howard did not recognize the voice and he had neither a
telephone number nor a name to associate with the voice mail.
       Howard took the threats seriously and believed the threat would be carried out
because he had “no clue” who left the message. He took steps to protect himself and his
family, such as making sure his house was locked, placing guns in various places in his
home that he could get to quickly if needed, and directing his children to go behind a car
if a vehicle that they did not recognize came into their cul-de-sac. Howard also started to
carry a gun when he mowed the lawn.
       Howard had no prior relationship or contact with defendant.
       B.     Officer Michael Hernandez—Count 5
       Fresno police officer Michael Hernandez was working on May 1, 2010, when he
received a voice mail message left on his department-issued phone system. The message
stated, “You’re dead[,] mother fucker[.] I’m going to kill your family. I’m going to kill
your kids. I’m going to kill you [sic] wife. Take that suck it in[,] you Bastard.”
Hernandez did not recognize the voice. Neither a name nor a telephone number was left
with the message and the system did not have a caller ID associated with the voice mail.
       Hernandez took the threat seriously because it “came out of the blue” and because
it threatened not only him, but also his wife and children. The voice message left him in
fear for his safety and the safety of his family. He took steps to protect himself: he
started carrying an off-duty weapon at all times; he installed an alarm system with a panic

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button at home for his family; he activated the GPS on his wife’s and children’s cellular
telephones, which synced to his telephone; he was more cautious at work and at home
and while traveling between the two locations.
       Hernandez had never arrested defendant and did not have any prior relationship
with him.
       C.     Detective George Imirian
       Fresno police detective George Imirian was assigned to investigate the threats
made to Howard and Hernandez. Imirian reviewed the audio recordings of both
messages and obtained a search warrant for defendant at his residence on Fedora Avenue
in Fresno, California.
       On May 27, 2010, the Fresno Police Department executed the search warrant at
defendant’s residence. Imirian was the lead investigator when the search warrant was
executed and he wore a load-bearing vest that said “Police” on it.
       Defendant’s mother answered the door when the police knocked, and she was
informed a warrant was being served. While the police talked with his mother, defendant
came out of the garage and angrily said, “Can’t you see the fucking sign?” as he pointed
to a little placard on the gate that said “Beware of dog.” Imirian informed defendant he
had a search warrant and he walked defendant out onto the front lawn to explain it.
Imirian told defendant he was there investigating threats made to police officers from
defendant’s cell phone and Imirian also recited that number to him. In response,
defendant smiled and said, “You’re here for that? Fuck you, pig. This is America, and I
can say whatever I want.” Defendant then clenched his fist while standing on the front
lawn. Police handcuffed defendant, but gave him the option to leave. They told him that,
if he wanted to stay, he had to stay in handcuffs. Defendant elected to stay.
       Defendant was living inside a “Tuff Shed” in the garage. Imirian had detective
Scholl watch defendant while police conducted a search of that shed, defendant’s
residence.

                                            4.
       Imirian located a cell phone during the search of the Tuff Shed. He dialed the
number he previously recited to defendant and the cell phone rang.
       Police also searched defendant’s truck and found scanner codes for police
scanners, which would allow him to listen to a particular police department, such as
Clovis or Fresno. A police scanner was located mounted to the side of the Tuff Shed,
which was “on” and tuned to Imirian’s specific channel. Imirian keyed up his police
radio and he could hear himself talking on defendant’s scanner.3
       Imirian listened to defendant’s voice during the course of executing the search
warrant. Imirian testified the voice heard on the messages sounded like defendant’s
voice, but when asked if it was fair to say he was not 100 percent sure, he said, “No, of
course not.” Imirian had never spoken with defendant prior to execution of the search
warrant.
       On cross-examination, Imirian admitted he did not have any police training on
voiceprint analysis and he agreed he was not an expert on that subject. Imirian also
clarified he did not say the voices from the messages and defendant’s “were the same”
but that they sounded “very similar.” Regarding the similarity of defendant’s voice with
the recorded messages, Imirian testified that “coupled with the evidence that we
recovered linking his cell phone and his cell phone being found in his Tuff Shed, totality
of it, I concluded, yeah, it was similar.”




3       The police scanner would have allowed defendant to listen to law enforcement
radio traffic, such as dispatch calls for service, officers “running” individuals or vehicles,
and, occasionally, officers giving personal information like their cell phone numbers over
the radio, a practice which the Fresno Police Department changed after this incident.
There was, however, no evidence either Howard or Hernandez broadcasted their cell
phone numbers over the police scanner.



                                              5.
       D.     Detective Mike Scholl
       Detective Mike Scholl participated in the execution of the search warrant on
defendant’s property and stayed with defendant after he was placed in handcuffs. As the
police executed the warrant, defendant was very angry and agitated. Defendant informed
Scholl he had attended the Fresno police academy in 1991 and, “That’s when I learned
about you motherfuckers. Once I learned what you were like, I decided against it. You
guys are corrupt, and the whole system is going to fall.” Defendant’s mother approached,
told him he should quiet down and defendant said, “Kim did this. I know it. She called
the cops. That’s okay. She’s going to get it. She’s going to get it now.” Scholl learned
from defendant’s mother that Kim was defendant’s ex-girlfriend.
       Defendant later said, “You guys are tearing my stuff up over a threatening phone
call? You want a threat? Maybe I’ll shoot you.”
                                      DISCUSSION
       Defendant does not challenge whether criminal threats in violation of section 422
occurred. He concedes his behavior during the execution of the search warrant might
cause a jury to conclude he was capable of making threats, but he argues the evidence
was insufficient to establish he was the person who left the threatening messages.
       We “‘“review the whole record in the light most favorable to the judgment
[below] to determine whether it discloses 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.”’” (People v. Jones (2013) 57
Cal.4th 899, 960, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.) The relevant
question is not whether we believe the evidence at trial established guilt beyond a
reasonable doubt, but rather “‘the relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’” (People v. Johnson,
supra, 26 Cal.3d at p. 576, italics omitted.) We are to “‘“‘presume in support of the

                                             6.
judgment the existence of every fact the trier could reasonably deduce from the
evidence.’” [Citation.]’” (People v. Clark (2011) 52 Cal.4th 856, 943, quoting People v.
Davis (1995) 10 Cal.4th 463, 509.)
       Defendant claims Imirian’s testimony was “equivocal” regarding the
identification. He argues Imirian used the “‘totality’” of the circumstances to support his
voice identification and not just the “pure similarity” of the voices on the recordings
compared to defendant’s voice. He points out that he never testified and did not speak in
front of the jury, so the jury could not compare the voice mail messages with his voice.
He contends the jury was never shown how Imirian identified him in the first place or
why Imirian obtained a search warrant for his residence. Defendant urges Imirian’s voice
identification cannot be given any weight without the underlying facts upon which it was
based. He maintains no evidence tied his cell phone to the threatening messages.
Finally, he argues his statements during the execution of the search warrant did not rise to
the level of a confession; that, at most, they could be characterized as an admission and,
as such, were insufficient to support the convictions.
A.     Imirian’s testimony regarding identification.
       It is the trier of fact who makes credibility determinations and resolves factual
disputes. (People v. Estrella (1995) 31 Cal.App.4th 716, 724-725.) An appellate court
will not substitute its evaluation of a witness’s credibility for that of the fact finder.
(People v. Smith (2005) 37 Cal.4th 733, 739, citing People v. Jones (1990) 51 Cal.3d 294,
314.) When a jury believes a witness’s statements, those statements will not be rejected
on appeal unless a physical impossibility exists that they are true, or their falsity is
apparent without resorting to inferences or deductions. (People v. Friend (2009) 47
Cal.4th 1, 41; People v. Barnes (1986) 42 Cal.3d 284, 306.)
       Here, it is clear the jury found Imirian’s testimony credible and used his testimony
to identify defendant as the person who left the threatening messages. It was the jury’s
responsibility to assess the credibility of this testimony. We will not substitute our

                                               7.
evaluation of Imirian’s credibility for that of the jury even though Imirian was equivocal
about the voice identification and he based his opinion on the “totality” of the
information he had. We will not disturb the jury’s finding because Imirian listened to the
audio recordings of both messages and also listened to defendant’s voice during the
course of executing the search warrant. (People v. Gonzales (1968) 68 Cal.2d 467, 472
[police officer’s lack of positiveness regarding the defendant’s identity goes to weight
and not to competency of evidence].) Imirian’s testimony will not be rejected on appeal
because it had no apparent falsity without resorting to inferences or deductions. (People
v. Friend, supra, 47 Cal.4th at p. 41.)
       Further, it is immaterial that Imirian admitted he had no special training in voice
print analysis and was not an expert on this subject as defendant asserts because Imirian’s
opinion as a lay witness was rationally based on his perception and was helpful to a clear
understanding of his testimony. (Evid. Code, § 800; People v. Farnam (2002) 28 Cal.4th
107, 153.) It was permissible for the jury to use Imirian’s testimony, and his testimony
alone, to resolve whether defendant’s voice matched the voices on the threatening
messages. (People v. Richardson (2008) 43 Cal.4th 959, 1030-1031 [testimony of a
single witness is sufficient for proof of any fact]; CALJIC No. 2.27.)
B.     Evidence linking defendant’s cell phone to the threatening messages.
       Circumstantial evidence may be sufficient to connect a defendant with a crime and
prove his guilt beyond a reasonable doubt. (People v. Abilez (2007) 41 Cal.4th 472, 504;
People v. Jones, supra, 57 Cal.4th at pp. 960-961.) Substantial evidence is used to
determine the sufficiency of an identification to support a conviction. (People v. Cuevas
(1995) 12 Cal.4th 252, 257.) Both the probative value of the identification and whatever
other evidence is in the record are considered together to determine whether the jury
could find the elements of the crime proven beyond a reasonable doubt. (Id. at p. 274.)
       Imirian testified they had recovered evidence “linking [defendant’s] cell phone.”
When Imirian first made contact with defendant, he informed defendant he was

                                             8.
investigating threats made to police officers from defendant’s cell phone and recited the
number to him. Imirian located a cell phone at defendant’s residence, dialed the number
he had for defendant’s cell phone, and the recovered cell phone rang.
       Based on this testimony, it is reasonable the jury could deduce Imirian linked
defendant’s cell phone to the threatening messages through his normal police work prior
to obtaining the search warrant. (People v. Clark, supra, 52 Cal.4th at p. 943 [appellate
court is to presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence].) Imirian’s testimony tied defendant’s cell phone
to the threatening messages and it was further circumstantial evidence linking defendant
to the crimes.
C.     Defendant’s admissions.
       After Imirian told defendant he was investigating threats made to police officers
from defendant’s cell phone, and he recited the number, defendant smiled and said,
“You’re here for that? Fuck you, pig. This is America, and I can say whatever I want.”
Later, while police executed the search warrant, defendant said to Scholl, “You guys are
tearing my stuff up over a threatening phone call? You want a threat? Maybe I’ll shoot
you.” Defendant contends these statements were not a confession and, to the extent they
were admissions, they were not sufficient to support the convictions.
       The distinction between a confession and an admission is that a confession is a
statement “‘which, if true, discloses … [defendant’s] guilt of that crime and excludes the
possibility of a reasonable inference to the contrary’” while an admission is a declaration
which, “‘by itself, is not sufficient, even if true, to warrant an inference of guilt, but
which tends to prove guilt when considered with the rest of the evidence.’” (People v.
Fitzgerald (1961) 56 Cal.2d 855, 861.) Defendant’s statements to police were
admissions because they were declarations “‘which tend[] to prove guilt when considered
with the rest of the evidence.’” (Ibid.)



                                               9.
       A jury may consider a criminal defendant’s statements so long as “‘the modicum
of necessary independent evidence of the corpus delicti’” is present. (People v. Valencia
(2008) 43 Cal.4th 268, 297, quoting People v. Alvarez (2002) 27 Cal.4th 1161, 1181.)
The corpus delicti rule requires some evidence that a crime occurred, independent of the
defendant’s statements, but the identity of the person who committed the crime is not part
of the corpus delicti. (People v. Ledesma (2006) 39 Cal.4th 641, 721.) The level of
evidence necessary to find independent proof of the corpus delicti is not great and, once
done, “‘the defendant’s statements may be considered to strengthen the case on all
issues.’” (Ibid., quoting People v. Alvarez, supra, 27 Cal.4th at p. 1181.) The jury may
then use the defendant’s statements to identify him or her as the person who committed
the crime if that is at issue. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1429;
CALJIC No. 2.72.)
       Here, there was independent evidence the criminal threats occurred apart from
defendant’s statements to police. As such, the jury could use defendant’s admissions to
identify him as the person who committed the crimes. (People v. Rivas, supra, 214
Cal.App.4th at p. 1429; People v. Alvarez, supra, 27 Cal.4th at p. 1181 [a defendant’s
statement may be considered to strengthen the case on all issues].)
       Defendant contends his statement to Imirian shows no more than defendant’s
anger his home would be searched over messages. He also argues that his statement to
Scholl occurred after defendant was told police were conducting a search over
threatening phone calls. However, defendant’s admissions also support a reasonable
inference it was defendant who left the threatening messages. Reversal of a judgment is
not required merely because admissions can be interpreted more than one way. (People
v. Abilez, supra, 41 Cal.4th at p. 504 [the opinion of the reviewing court that
circumstances might also reasonably be reconciled with a contrary finding of the jury
does not warrant a reversal of judgment].)



                                             10.
       A review of the entire record in the light most favorable to the judgment discloses
substantial evidence defendant left the threatening voice messages for both Howard and
Hernandez. Imirian’s opinion that defendant’s voice was “very similar” to the voice
heard on the threatening messages, coupled with evidence linking defendant’s cell phone
to the threatening messages, plus defendant’s admissions constitute evidence that was
reasonable, credible, and of solid value such that a reasonable jury could find defendant
guilty beyond a reasonable doubt. (People v. Jones, supra, 57 Cal.4th at p. 960; People
v. Johnson, supra, 26 Cal.3d at p. 576.)
       Accordingly, defendant’s convictions of the crimes listed in counts 1 and 5 are
affirmed.
                                     DISPOSITION
       The judgment is affirmed.

                                                                _____________________
                                                                          DETJEN, J.
WE CONCUR:


 _____________________
 LEVY, Acting P.J.


 _____________________
 POOCHIGIAN, J.




                                            11.
