Filed 3/14/16 P. v. Lopez CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B261637

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA427831)
         v.

FRANCISCO LOPEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, George
G. Lomeli, Judge. Affirmed.
         Alan E. Spears, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, and Michael C. Keller and
David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.




                                  ________________________________
       Appellant Francisco Lopez appeals from his judgment of conviction of one count
of making criminal threats (Pen. Code,1 § 422). On appeal, Lopez contends that the trial
court abused its discretion in admitting evidence of two civil restraining orders that the
victim obtained against him. Lopez also claims that the prosecutor committed prejudicial
misconduct and violated his constitutional right to remain silent by referring to Lopez’s
silence at the time of his arrest as showing consciousness of guilt. We affirm.

           FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I.     The Charges
       The Los Angeles County District Attorney charged Lopez with four counts of
criminal threats (§ 422) arising from events on March 20, 2014, and one count of
attempted criminal threats (§§ 664, 422) arising from events on March 14, 2014. It was
alleged that Lopez personally used a deadly or dangerous weapon during the commission
of the March 20, 2014 offenses (§ 12022, subd. (b)(1)). It also was alleged that Lopez
had one prior serious or violent felony conviction (§§ 667, subds. (a)(1), (d), 1170,12,
subd. (b)) and had served three prior prison terms (§ 667.5, subd. (b)). Lopez pled not
guilty to each count and denied the enhancement allegations.

II.    The Evidence At Trial
       Elidia Q., her husband, Jimmy, and their four children―Elizabeth (age nine),
Jonathan (age eight), David (age six), and Jason (age 17 months)―lived across the street
from Lopez in Los Angeles. Lopez resided with his mother and Elidia’s father, who were
in a long-term relationship. Elidia would see Lopez around the neighborhood, but she did
not speak to him.
       On March 14, 2014, at approximately 7:00 a.m., Jonathan and David were sitting
on a bench in front of their house as they waited for Elidia to take them to school. They
were laughing and playing a game with another child from the neighborhood. Elidia,



1      Unless otherwise stated, all further statutory references are to the Penal Code.


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who was inside the house, suddenly heard someone scream, “Fuck you, shut up.”
Elidia and her brother-in-law went outside to investigate, and Elidia saw that Lopez was
screaming at the children from across the street. He appeared angry and told the children
multiple times to “shut up” or he would “fuck them up.” He continued screaming at the
children as he walked across the street toward Elidia’s house. As Lopez approached the
front gate, he specifically said to then five-year-old David, “Fuck you, faggot. Fat boy.
I’m going to fuck you up and teach you respect.”
       Elidia’s husband, Jimmy, arrived home from work as Lopez was walking toward
the house. Lopez tried to provoke Jimmy into a physical fight, telling him, “Fuck you.
Right now, let’s get it on, right now.” Lopez also said, “Come on, I want to fuck you
up.” He grabbed the bars of the front gate and began shaking them. Jimmy told Lopez to
calm down and go back to his house. Elidia was afraid and believed that Lopez wanted
to hurt someone in her family. She told the children to go inside the house and she then
called the police. After the police arrived, they advised Elidia to seek a restraining order.
On March 17, 2014, Elidia obtained a temporary restraining order against Lopez. She
was informed that the order would be served on Lopez within two to three days. Elidia
decided to seek a restraining order at that time because she was afraid that Lopez would
hurt her or her children.
       On March 20, 2014, at approximately 6:00 p.m., Elidia pulled into the driveway of
her house after picking her children up from school. As the children were getting out of
the car, Elidia heard Lopez screaming, “I’m going to fuck you guys up and teach you
respect.” Elidia immediately dialed 911 because she believed the temporary restraining
order was in effect. As Elidia was calling the police, Lopez started walking across the
street toward her house. He continued to scream that he was going to “fuck [them] up.”
Elidia was afraid and told the children to go inside the house. She then turned around and
saw that Lopez had something in his hand that looked like a knife. Elidia also heard
Jonathan say, “Oh, my god, he’s got a knife.”
       Elidia rushed the children inside the house and locked the doors. She instructed
them to stay in their bedroom while she spoke to the 911 operator. During the 911 call,

                                              3
Elidia reported that Lopez had a knife and that he told her that he was “going to fuck up
[her] kids and teach them respect.” Once the police arrived, the children came out of
their room and appeared to be scared. Elidia reassured them that everything was okay,
but she felt afraid for her life and her children’s lives.
        Los Angeles Police Officer William Gatlin and his partner responded to Elidia’s
911 call. They first met with Elidia and then went to Lopez’s house. When Lopez came
outside, the officers took him into custody. Lopez appeared “a little upset,” but did not
say anything. A saw with a seven-inch blade was recovered from Lopez’s house. When
Officer Gatlin showed the saw to Elidia, she indicated it could possibly be the weapon
that Lopez was holding, but she was not sure. After the police left, Elidia’s children
continued to appear frightened, and David and Elizabeth later began having nightmares.
On April 7, 2014, Elidia obtained a permanent restraining order against Lopez. A
certified copy of a “civil harassment and restraining order after hearing” dated April 7,
2014 was admitted into evidence at trial.

III.   Verdict and Sentencing
       On the counts arising from the March 20, 2014 incident, the jury found Lopez
guilty of criminal threats against Elidia [count 1], but not guilty of criminal threats
against Elizabeth, Jonathan, and David [count 2-4]. On the count arising from the March
14, 2014 incident, the jury found Lopez not guilty of attempted criminal threats against
David [count 5]. The jury also found the personal use of a weapon allegation in count 1
to be not true. Lopez admitted the prior serious or violent felony conviction and the trial
court struck the prior prison term allegations. The court sentenced Lopez to a total term
of seven years and eight months in state prison. Lopez filed a timely notice of appeal.

                                        DISCUSSION
I.     Admission of Evidence of Civil Restraining Orders
       Lopez argues that the trial court abused its discretion in admitting evidence of the
two civil restraining orders that Elidia obtained against him. Lopez specifically contends
that the fact that a civil court granted Elidia’s requests for the restraining orders was not

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relevant to the reasonableness of her alleged fear. Lopez also claims that admission of the
evidence was unduly prejudicial because it suggested to the jury that a court of law already
had determined that Lopez was guilty of making criminal threats.

       A.     Relevant Background
       Prior to trial, Lopez objected to the admission of evidence regarding the two civil
restraining orders that Elidia had obtained. His counsel asserted that the evidence was
not relevant to the charged crimes because there was no allegation that Lopez violated
any restraining order in making the criminal threats. His counsel also argued that the
evidence should be excluded as unduly prejudicial because the standard for a civil
restraining order was lower than the standard for a criminal prosecution.
       The prosecutor contended that the evidence was relevant on the element of
sustained fear because it demonstrated that Elidia’s fear caused her to take immediate
action after the March 14, 2014 incident by seeking a temporary restraining order, and
then to complete the process after the March 20, 2014 incident by obtaining a permanent
restraining order. The prosecutor reasoned that the evidence thus showed an extended
period of sustained fear starting on March 14, 2014, and continuing to the issuance of a
permanent restraining order on April 7, 2014.
       The trial court found that the evidence of the civil restraining orders was relevant
on the issue of Elidia’s sustained fear and the reasonableness of that fear. The court also
found that the evidence was probative of Elidia’s credibility as a witness and that it was
not unduly prejudicial under Evidence Code section 352.

       B.     Relevant Law
       The rules pertaining to the admissibility of evidence are well-established. “Only
relevant evidence is admissible at trial. [Citation.] Under Evidence Code section 210,
relevant evidence is evidence ‘having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.’ A trial court has
‘considerable discretion’ in determining the relevance of evidence. [Citation.] Similarly,
the court has broad discretion under Evidence Code section 352 to exclude even relevant

                                             5
evidence if it determines the probative value of the evidence is substantially outweighed
by its possible prejudicial effects. [Citation.]” (People v. Merriman (2014) 60 Cal.4th 1,
74.) Evidence is unduly prejudicial under Evidence Code section 352 if it “‘“uniquely
tends to evoke an emotional bias against a party as an individual, while having only slight
probative value with regard to the issues.”’” (People v. Carter (2005) 36 Cal.4th 1114,
1168.) “‘[A]n appellate court applies the abuse of discretion standard of review to any
ruling by a trial court on the admissibility of evidence, including one that turns on the
relative probativeness and prejudice of the evidence in question. . . .’ [Citation.]”
(People v. Jablonski (2006) 37 Cal.4th 774, 805.) “We will not reverse a court’s ruling
on such matters unless it is shown ‘“the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.”
[Citation.]’ [Citation.]” (People v. Merriman, supra, at p. 74.)
        To prove a criminal threats offense under section 422, the prosecution must
establish that “(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 . . . 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.)
        With respect to the requirement that the victim “‘reasonably . . . be in sustained
fear’ for his or her own safety or the safety of his or her family,’” the term “‘sustained’
has been defined to mean ‘a period of time that extends beyond what is momentary,
fleeting, or transitory. …’ [Citation]” (People v. Wilson (2010) 186 Cal.App.4th 789,
808.) Accordingly, “[a] violation of section 422 is not complete upon the issuance of a

                                                6
threat; it depends on the recipient of the threat suffering ‘sustained fear’ as a result of the
communication.” (People v. Wilson (2015) 234 Cal.App.4th 193, 201.) In addition, “‘the
phrase to ‘cause[] that person reasonably to be in sustained fear for his or her own safety’
has a subjective and an objective component. A victim must actually be in sustained fear,
and the sustained fear must also be reasonable under the circumstances.” (In re Ricky T.
(2001) 87 Cal.App.4th 1132, 1140.) “‘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.)

       C.     The Trial Court Did Not Err In Admitting the Challenged Evidence
       The trial court did not abuse its discretion in admitting the evidence regarding the
civil restraining orders. Elidia testified that she obtained a temporary restraining order
against Lopez on March 17, 2014, three days after the first incident of threats, because
she was afraid that Lopez would hurt her or her children. Elidia further testified that,
following the second incident of threats on March 20, 2014, she “completed” the process
by obtaining a permanent restraining order against Lopez on April 7, 2014. The fact that
Elidia took concrete steps to secure first a temporary and then a permanent restraining
order was relevant to showing that she was in a state of sustained fear following each
incident. It supported the prosecution’s theory that Elidia’s fear “‘extend[ed] beyond
what is momentary, fleeting, or transitory’” by persisting for several weeks after Lopez
made each threat. (People v. Wilson, supra, 186 Cal.App.4th at p. 808.) The evidence
also was relevant to showing that Elidia’s fear during the March 20, 2014 incident was
reasonable under the circumstances. The fact that Elidia had obtained a temporary
restraining order three days earlier could support a finding that she reasonably believed
Lopez had been served with the order, was angry about it, and intended to harm Elidia
and her children when he threatened “to fuck you guys up and teach you respect.”
       The trial court also acted well within its discretion in concluding that the evidence
was not unduly prejudicial under Evidence Code section 352. The testimony about the
restraining orders was narrow in scope, did not consume an undue amount of time, and


                                               7
was not uniquely likely to evoke an emotional bias against Lopez. Elidia simply testified
about the dates on which she obtained each restraining order, and explained in a single
sentence that her motive for doing so was because she “was afraid that [Lopez] was
trying to hurt my kids or myself.” Despite the limited scope of the evidence, Lopez
asserts that the jury may have been confused about the differences between criminal and
civil standards of proof, and may have assumed that Lopez had already been found
“guilty” of making criminal threats by the civil court. However, the jury was properly
instructed that the prosecution had the burden of proving each element of the charged
crimes beyond a reasonable doubt, and “‘[w]e presume the jury understood and followed
the instruction.’” (People v. Capistrano (2014) 59 Cal.4th 830, 880.)
       Lopez also argues that the evidence of the restraining orders must have prejudiced
the jury against him because he was acquitted of criminal threats arising out of the earlier
March 14, 2014 incident, and the only difference between the two incidents was that a
restraining order was in effect when the second one occurred. This argument lacks merit.
The jury found Lopez not guilty on four of the five counts, including the counts alleging
that he made criminal threats against Elidia’s children during the March 20, 2014
incident. A reasonable inference that can be drawn from the verdicts was that the jury
did not believe that Lopez’s words caused the children to be afraid for their own safety or
the safety of their family, but did believe that Elidia experienced such a state of sustained
fear. This is consistent with the testimony at trial. While Elizabeth and Jonathan testified
that they were afraid of Lopez, they could not recall the details of the incidents other than
that Lopez argued with their father and used “bad words,” and they did not appear to
understand Lopez’s words to mean that he was going to hurt them or members of their
family. Elidia, on the other hand, testified in detail about Lopez’s specific statements and
their effect on her, and explained that she perceived his words as a threat to physically
harm her and her children. The fact that the jury found Lopez not guilty on four of the
five counts greatly undercuts his claim of undue prejudice. On this record, the trial court
did not err in admitting the evidence of the civil restraining orders.



                                              8
II.    Prosecutor’s Comments About Lopez’s Silence At the Time of His Arrest
       Lopez next asserts that the prosecutor committed prejudicial misconduct and
violated his Fifth Amendment privilege against self-incrimination by referring to his
silence at the time of his arrest as reflecting consciousness of guilt.

       A.     Relevant Background
       During the trial, the prosecutor engaged in the following exchange with Officer
Gatlin, one of the officers who arrested Lopez on March 20, 2014:
       [Prosecutor:] And what happened next? What did you do next?
       [Officer Gatlin:] . . . [Elidia] advised us that [Lopez] had went back in his house
across the street. So we went over there, door-knocked, and the defendant stepped out,
and we took him into custody.
       [Prosecutor:] And that’s the location of 1331 East 33rd Street, City of Los
Angeles, Count of Los Angeles?
       [Officer Gatlin:] Yes.
       [Prosecutor:] And when you made contact with him, what was his demeanor?
       [Officer Gatlin:] You could tell he was a little upset, but he wasn’t saying much.
       [Prosecutor:] Did he say anything at all?
       [Officer Gatlin:] No.
       [Prosecutor:] Did you ask him anything prior to your arresting him?
       [Officer Gatlin:] No.2
       During closing argument, the prosecutor commented on Lopez’s silence at the
time of his arrest as evidence of his guilt. In particular, the prosecutor stated: “Officer
Gatlin. No motive to lie. He says that the moment he knocks on his door, the defendant
comes out. The defendant doesn’t say anything. The only thing that Officer Gatlin
noticed was the defendant was upset, consistent with someone who had probably just
threatened some people. The defendant doesn’t say anything before he gets arrested. He


2      Lopez does not argue that the admission of this testimony was error.


                                               9
does not say one thing at all. An innocent person would have said, ‘What are you doing
here? What are you talking about? Why are you arresting me?’ And he did not. . . .”
Following an objection by defense counsel, which the trial court overruled, the prosecutor
continued: “Ladies and gentlemen, that . . . shows a consciousness of guilt. That’s the
moment where you say ‘Whoa. You’ve got the wrong person. I don’t know what you’re
talking about. I did not do anything. This is not right.’ He did not do that. Innocent
people do that. . . . That, ladies and gentlemen, is consciousness of guilt of what he did
on March 20, 2014.”

       B.     Relevant Law
       The Fifth Amendment’s self-incrimination clause states that “[n]o person . . . shall
be compelled in any criminal case to be a witness against himself . . . .” (U.S. Const., 5th
Amend.) “‘As a prophylactic safeguard to protect a suspect’s Fifth Amendment privilege
against self-incrimination, the United States Supreme Court, in [Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda)], required law enforcement agencies to advise a suspect,
before any custodial law enforcement questioning, that “he has the right to remain silent,
that anything he says can be used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney one will be appointed
for him prior to any questioning if he so desires.” [Citations.]’” (People v. Sauceda-
Contreras (2012) 55 Cal.4th 203, 215.) Under Doyle v. Ohio (1976) 426 U.S. 610
(Doyle), “a prosecutor is prohibited from using a defendant’s postarrest silence following
Miranda warnings to impeach his testimony at trial. [Citation.] The basis of the rule is
that ‘it is fundamentally unfair, and a deprivation of due process, to promise an arrested
person that his silence will not be used against him, and then to breach that promise
by using silence to impeach his trial testimony.’ [Citation.] . . . Doyle also prohibits a
prosecutor from using a defendant’s silence against him during direct examination of
an interrogating officer, before the defendant testifies in his own behalf. [Citations.]”
(People v. Clark (2011) 52 Cal.4th 856, 959.)




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       In People v. Tom (2014) 59 Cal.4th 1210 (Tom), the California Supreme Court
addressed whether the prosecution’s reliance on a defendant’s silence following his arrest
but before receipt of Miranda warnings violates the Fifth Amendment privilege against
self-incrimination. The Court held that the prosecution’s use of a defendant’s postarrest,
pre-Miranda silence was not barred by the Fifth Amendment in the absence of custodial
interrogation or a clear invocation of the privilege. (Id. at p. 1215.) In reaching this
holding, the Court relied on the United States Supreme Court’s decision in Salinas v.
Texas (2013) 570 U.S. ___, ___ [186 L. Ed. 2d 376, 133 S. Ct. 2174, 2182] (Salinas),
which held in a plurality opinion that the prosecution’s use of a defendant’s prearrest,
pre-Miranda silence did not violate the Fifth Amendment where the defendant did not
expressly invoke the privilege against self-incrimination in responding to an officer’s
question. The Court in Tom likewise concluded that “the objective invocation rule
applies to [the] defendant’s postarrest, pre-Miranda silence” (Tom, supra, at p. 1228),
and that in the absence of custodial interrogation, the defendant “needed to make a timely
and unambiguous assertion of the privilege in order to benefit from it” (id. at p. 1215).

       C.     The Prosecutor’s Comments About Lopez’s Pre-Miranda Silence Did
              Not Constitute Reversible Error

       In this case, the prosecutor relied on Lopez’s pre-Miranda silence at the time of
his arrest to show consciousness of guilt.3 On appeal, Lopez acknowledges that, under
the general rule set forth in Tom and Salinas, the prosecution’s reliance on a defendant’s
pre-Miranda silence, whether before or after his arrest, does not violate the Fifth


3      While it is unclear from Officer Gatlin’s testimony whether Lopez’s silence
occurred before, during, and/or immediately after his arrest, there is no indication in the
record that either Officer Gatlin or the prosecutor referred to any silence that may have
occurred following Lopez’s receipt of the Miranda warnings. Accordingly, there was no
Doyle error in this case. (See People v. Clark, supra, 52 Cal.4th at p. 959 [Doyle error
occurs when the prosecutor uses “a defendant’s postarrest silence following Miranda
warnings to impeach his testimony at trial”].)


                                             11
Amendment privilege against self-incrimination in the absence of custodial interrogation
or an unambiguous invocation of the privilege. Here, there was no evidence that Lopez
expressly invoked the privilege against self-incrimination when the police came to his
house, knocked on his door, and then placed him under arrest. Lopez, however, seeks to
distinguish Tom and Salinas on the ground that the defendants in those cases voluntarily
answered some questions posed by the police before they were arrested, whereas Lopez
was arrested as soon as he stepped out of his house without being asked any questions.
Lopez asserts that the general rule requiring a defendant to expressly invoke the privilege
against self-incrimination should not apply in cases where the police do not ask any
questions or elicit any statements prior to placing the defendant under arrest.
       We need not decide whether the Fifth Amendment barred the prosecutor’s use of
Lopez’s pre-Miranda silence at the time of his arrest as substantive evidence of his guilt.
Even assuming, without deciding, that the prosecutor was precluded from commenting on
Lopez’s silence, any such error was harmless beyond a reasonable doubt. (See Chapman
v. California (1967) 386 U.S. 18, 24; People v. Thomas (2012) 54 Cal.4th 908, 937.) The
jury found Lopez guilty on only one of the five charged criminal threats counts. With
respect to the one count on which Lopez was convicted―criminal threats against Elidia
arising out of the March 20, 2014 incident―there was compelling evidence of his guilt.
Elidia provided detailed, uncontroverted testimony about the threatening statements that
Lopez made on March 20, 2014, and the sustained fear that she experienced as a result of
his threats. The jury also heard the audio recording of the 911 call that Elidia made as the
events that day were unfolding, which corroborated her trial testimony that Lopez was
screaming that he was “going to fuck you guys up and teach you respect.” The 911 call
also provided strong evidence that Elidia was in fear for her own safety and the safety of
her family, as she could be heard repeatedly telling her children to “run inside the house”
and to “lock everything.” Based on the totality of the record, it appears beyond a
reasonable doubt that the prosecutor’s references to Lopez’s pre-Miranda silence at the
time of his arrest did not contribute to the jury’s verdict. There was no error requiring
reversal.

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                                    DISPOSITION
      The judgment is affirmed.




                                                ZELON, Acting P. J.



We concur:




      SEGAL, J.



                          
      BLUMENFELD, J.




       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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