Filed 1/21/16 P. v. Jordan CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                      G050679

                   v.                                               (Super. Ct. No. 14CF0231)

DONALD JORDAN, JR.,                                                 OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
                   Marta I. Stanton, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and
Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
                                              *              *               *
              A jury convicted defendant Donald Jordan, Jr., of criminal threats (Pen.
Code, § 422, subd. (a) [counts 1-2]; all citations are to the Penal Code unless noted
otherwise), attempted false imprisonment by violence (§§ 236, 237, subd. (a), 664, subd.
(a) [counts 3-4]), carrying a loaded, stolen firearm in public (§ 25850, subds. (a), (c)(2)
[count 5]), felon in possession of a firearm (§ 29800, subd. (a)(1) [count 6]), assault with
a firearm (§ 245, subd. (a)(2) [counts 7-8]), and brandishing a deadly weapon (§ 417,
subd. (a) [count 9].) The jury also found Jordan was personally armed (§ 12022, subd.
(a)(1); counts 1-4) and personally used (§ 12022.5, subd. (a)(1); counts 1-4) a firearm.
Jordan contends there is insufficient evidence he committed criminal threats, attempted
false imprisonment, and assault with a firearm. For the reasons expressed below, we
affirm.


                                              I
                        FACTUAL AND PROCEDURAL BACKGROUND
              In January 2014, Maria Bravo lived in Santa Ana with her family. Irma
Mendoza rented a room in the same house. On the evening of January 22, Bravo and
Mendoza took a walk around their neighborhood. As they passed a vacant lot, a man,
later identified as Jordan, and his female companion began following them. Bravo grew
frightened and told Mendoza to walk faster.
              Bravo and Mendoza returned home, with Jordan and the woman still
following. Mendoza told Bravo they should sit on the porch and wait for the couple to
depart. Jordan and his companion stopped at the driveway. Jordan’s companion assisted
him in removing his jacket, and he put his hand on his waist. Bravo insisted they retreat
into the house, and she closed all the windows and doors.
              After several minutes, Mendoza said “let’s see what they want” and
suggested “maybe they just want a dollar or an address.” Mendoza opened the door.
Bravo stood two steps from Mendoza behind the door. According to Mendoza, Jordan

                                              2
stood next to the door with a black handgun in his right hand. His arm was bent, and he
pointed the gun to the right side of his leg at a 45-degree angle toward the floor. Jordan
commanded, “Get out of the house” or “Get out of the house right now,” and moved the
weapon laterally. Jordan sounded “nervous,” “serious,” and “angry,” and Mendoza
“thought he was going to kill [her].” Mendoza immediately closed the metal screen door,
and Bravo closed and locked the wooden main door. Mendoza exclaimed, “He has a big
gun.” Bravo’s legs trembled and she felt “terrorized.” She heard footsteps run toward
the back of the house and called 911.
              Police officers detained Jordan a few houses away in possession of a loaded
semiautomatic handgun in his waistband. He had an additional magazine tucked inside
his boxer shorts. He was cooperative and “kind of indifferent” and did not appear to be
intoxicated. The parties stipulated Jordan was a previously convicted felon, and the gun
was stolen.
              Jordan testified he was under the influence of crystal methamphetamine at
the time of the incident. He was emotional, fearful, and highly anxious. He and his
girlfriend left the girlfriend’s home to walk to the home of her friend. He denied
following Bravo and Mendoza, but admitted they walked behind the women. Jordan
borrowed the gun from a friend, did not know if it was stolen, and kept it for protection
because of a previous run-in with Hispanic gang members.
              Jordan described his encounter with Bravo and Mendoza. He claimed he
walked down Bravo’s driveway searching for a water hose to get a drink. He took off his
jacket because he was hot and sweaty after the walk and because of the drugs. Mendoza
appeared through the back door, and when the screen door slammed against the wall, he
got “spooked,” and he displayed the gun. He fled and hid because he knew he had
“induced fear in these people” and he did not want to “end back up in jail.” He denied
pointing the weapon at Mendoza or telling her to come out of the house.



                                             3
              In a pretrial interview, however, Jordan gave a different account of the
incident to a police officer. Jordan claimed he went to the rear of the victims’ house to
retrieve a boxed handgun he had buried in the dirt. He gave the box to his girlfriend and
told her to go to the local Burger King. Jordan claimed Bravo and Mendoza had been
following him on a regular basis. He decided to trail them to learn why they had
followed him, and to ascertain whether they were undercover police officers. He
knocked on the door and told them to come out of the house. He displayed the gun,
which belonged to his girlfriend, because he wanted to show them the gun.
              Following trial in June 2014, a jury convicted Jordan as noted above.
Before trial, Jordan admitted suffering a robbery conviction in Nevada in September
2004 that qualified as a serious or violent felony conviction under both the Three Strikes
law (§§ 1170.12, subds. (b) & (c)(1), 667, subds. (d) & (e)(1)) and section 667,
subdivision (a)(1) (five-year enhancement). He also admitted serving two prior prison
terms (§ 667.5, subd. (b)(1)). The court imposed a 10-year, eight-month prison sentence,
comprised of a two-year, eight-month term (low term doubled because of the strike
conviction) for criminal threats (count 1, a consecutive three-year low term for personal
use of a firearm (§ 12022.5, subd. (a)), and a consecutive five-year term for the prior
robbery conviction (§ 667, subd. (a). The court imposed concurrent or stayed (§ 654)
terms for the other convictions and enhancements.


                                             II
                                       DISCUSSION
              Jordan challenges the sufficiency of the evidence to support the convictions
for criminal threats, attempted false imprisonment, and assault with a firearm. On appeal,
we must view the record in the light most favorable to the judgment below. (People v.
Elliot (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the
verdict (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Johnson (1980)

                                             4
26 Cal.3d 557, 577-578), not whether the appellate panel is persuaded the defendant is
guilty beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139
(Crittenden).) It is the jury’s exclusive province to weigh the evidence, assess the
credibility of the witnesses, and resolve conflicts in the testimony. (People v.
Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).) Accordingly, we must presume in
support of the judgment the existence of facts reasonably drawn by inference from the
evidence. (Crittenden, at p. 139; see People v. Stanley (1995) 10 Cal.4th 764, 792 [same
deferential standard of review applies to circumstantial evidence].) The fact that
circumstances can be reconciled with a contrary finding does not warrant reversal of the
judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Consequently, an appellant
“bears an enormous burden” in challenging the sufficiency of the evidence. (Sanchez, at
p. 330.)


A.   Substantial Evidence Supports the Criminal Threats Convictions
              Jordan asserts his statement “Come out of the house right now” was vague
and did not specifically convey an immediate threat of great bodily injury or death, and
displaying the gun did not convert the allegedly vague statement into a criminal threat.
He also urges his conduct in running away and hiding demonstrates he did not intend to
threaten the women. Finally, he argues there was insufficient evidence he threatened
Bravo, who remained in the house behind the door. We do not find these arguments
persuasive.
              Section 422 provides in relevant part, “Any person who willfully threatens
to commit a crime which will result in death or great bodily injury to another person, with
the specific intent that the statement, made verbally, in writing, or by means of an
electronic communication device, is to be taken as a threat, even if there is no intent of
actually carrying it out, which, on its face and under the circumstances in which it is
made, is so unequivocal, unconditional, immediate, and specific as to convey to the

                                              5
person threatened, a gravity of purpose and an immediate prospect of execution of the
threat, and thereby causes that person reasonably to be in sustained fear for his or her
own safety or for his or her immediate family’s safety, shall be punished by
imprisonment in the county jail not to exceed one year, or by imprisonment in the state
prison.” (See People v. Toledo (2001) 26 Cal.4th 221, 227-228 [restating elements];
CALCRIM No. 1300.)
              A threat is assessed by considering “all the surrounding circumstances and
not just the words alone.” (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340; see In
re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.) “[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.” (People v. Butler (2000) 85
Cal.App.4th 745, 753 (Butler). “‘The use of word “so” [in section 422] indicates that
unequivocality, unconditionality, immediacy and specificity are not absolutely mandated,
but must be sufficiently present in the threat and surrounding circumstances to convey
gravity of purpose and immediate prospect of execution to the victim.” (People v. Bolin
(1998) 18 Cal.4th 297, 340.)
              Here, the jury reasonably could conclude Jordan’s serious and angry order
to come out of the house, made while menacingly gesturing with a handgun, constituted a
verbal threat to commit a crime resulting in death or great bodily injury. The facts in this
case are similar to those in People v. Culbert (2013) 218 Cal.App.4th 184, 194 (Culbert).
There, the defendant confronted his stepson H., held an unloaded revolver to the boy’s
head, and said “[d]on’t ever lie to me” and “[d]on’t you ever call me that again,” before
pulling the trigger. (Id., at p. 188.) The appellate court rejected the defendant’s
contention his statements contained no explicit or implicit threat to inflict death or great
bodily injury. “Few objects are as inherently threatening as a firearm, especially when it
is pressed to one’s head. The only rational inference, taking into account the entire
context in which these statements were made, is that appellant was threatening to harm H.

                                              6
if H. ever again lied or called him names. Appellant did not need to add a phrase like ‘or
else,’ or ‘I’m going to kill you,’ to make his statements threatening. The firearm pressed
against H.’s temple accomplished that result.” (Id., at p. 190; see Butler, supra, 85
Cal.App.4th at p. 759 [punishable threats can be nonspecific and ambiguous so long as
they reasonably may be construed, under the circumstances, as threatening death or great
bodily injury].)
              Concerning the conviction related to Bravo, she stood directly behind
Mendoza when Jordan uttered his command to come out of the house. She heard
Mendoza exclaim Jordan had a big gun. Given that Jordan followed both women to the
house, the women entered the house together, and they stood near each other just inside
the door, the jury reasonably could conclude Jordan threatened both women.


B.   Substantial Evidence Supports the Attempted False Imprisonment Convictions
              Jordan also argues there was insufficient evidence he attempted to falsely
imprison Mendoza and Bravo. He asserts the women did not testify they were forbidden
from going anywhere or that they tried to leave, and they remained free to stay in their
home or to leave. He also asserts there was no evidence he intended to confine the
women.
              “False imprisonment is the unlawful violation of the personal liberty of
another. (§ 236.) The crime of false imprisonment requires some intended confinement
or restraint of the person; any exercise of force or express or implied threat of force by
which in fact the person is restrained from his liberty, compelled to remain where he does
not wish to remain, or to go where he does not wish to go, is such imprisonment.
[Citation.] The imprisonment may be committed by acts or words said or done with the
intent of causing the confinement. [Citation.] [¶] An attempt to commit a crime consists
of a specific intent to commit the crime, and a direct but ineffectual act done toward its



                                              7
commission. [Citations.]” (People v. Ross (1988) 205 Cal.App.3d 1548, 1553-1554,
italics added; see People v. Dominguez (2010) 180 Cal.App.4th 1351, 1360.)
              False imprisonment “effected by violence, menace, fraud, or deceit” is
punishable as a felony. (§ 237.) The elements of felony false imprisonment are: (1) the
defendant intentionally and unlawfully restrained, confined, or detained another person,
compelling him to stay or go somewhere; (2) the other person did not consent; and (3) the
restraint, confinement, or detention was accomplished by violence or menace. (People v.
Newman (2015) 238 Cal.App.4th 103, 109-110; People v. Fernandez (1994)
26 Cal.App.4th 710, 717; CALCRIM Nos. 1240 [felony false imprisonment] & 460
[attempt].)
              In People v. Riddle (1987) 189 Cal.App.3d 222, the defendant ordered a
young woman’s parents out of their home at gunpoint, and then sexually assaulted their
daughter inside the home. The appellate court held the defendant falsely imprisoned the
parents by forcing them out of their home: “The personal liberty of each of [the girl’s]
parents was unlawfully restrained when Riddle accomplished their removal from the
trailer home under threat of the firearm. Though the restraint was short in time and
distance, the restraint was real.” (Id. at pp. 229-230.)
              Here, the jury reasonably could conclude Jordan attempted to falsely
imprison Mendoza and Bravo by forcing them to leave their home unwillingly when he
threatened them with his gun. His statement and actions reflect the intent that they leave
the home. Substantial evidence supports the false imprisonment convictions.
C.   Substantial Evidence Supports the Convictions for Assault with a Firearm
              Finally, Jordan contends there was insufficient he assaulted Mendoza and
Bravo with a firearm because there was no testimony he pointed the loaded weapon at
them. He argues he “did not do an act with a firearm that would result in the application
of force” against the women, nor was it reasonable under the circumstances to conclude
he “should have known . . . pointing the gun to the ground would likely inflict harm . . . .”

                                              8
We disagree because drawing a loaded firearm against a person who is within its range is
sufficient to constitute an assault.
              “An assault is an unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.” (§ 240.) Assault with a firearm is a
felony. (§ 245, subd. (a)(2).) Assault requires the willful commission of an act that by its
nature will probably and directly result in injury to another (i.e., a battery), and with
knowledge of the facts sufficient to establish that the act by its nature will probably and
directly result in such injury. (People v. Williams (2001) 26 Cal.4th 779, 782.)
              The trial court instructed the jury that to find Jordan guilty of assault with a
firearm, it needed to find beyond a reasonable doubt he did an act with a firearm that by
its nature would directly and probably result in the application of force to a person, he did
the act willfully, when he acted he was aware of facts that would lead a reasonable person
to realize his act by its nature would directly and probably result in the application of
force to someone, and he had the present ability to apply force with a firearm to a person.
(CALCRIM No. 875) The trial court explained application of force meant “to touch in a
harmful or offensive manner” and “[t]he slightest touching can be enough if it is done in
a rude or angry way.” The court also instructed the prosecution did not need to prove
Jordan actually intended to use force against someone when he acted, and no one had to
actually have been injured by his act.
              In People v. McMakin (1857) 8 Cal. 547 (McMakin), the defendant
threatened to shoot the victim if he did not leave a parcel of property, at the same time
drawing a revolver, with the gun pointed such that the bullet would strike the ground
before it reached the victim if fired. The court affirmed an assault conviction: “The
ability to commit the offense was clear. Holding up a fist in a menacing manner, drawing
a sword or bayonet, presenting a gun at a person who is within its range, have been held
to constitute an assault. So any other similar act, accompanied by such circumstances as
denote an intention existing at the time, coupled with a present ability of using actual

                                               9
violence against the person of another, will be considered an assault.” (Id. at p. 548; see
Hays v. The People (N.Y. Sup.Ct. 1841) 1 Hill 351, 353.) The court noted there need not
be a direct attempt at violence, and that where “preparations are actually made, and
weapons drawn, and placed in a position to be instantly used offensively, and with effect,
against another, and not in self defense, it would seem to be clear that the offense would
be complete.” (McMakin, at p. 548.)1 Jordan drew the loaded gun, had the present
ability to inflict a violent injury and his act would probably and directly result in such
injury. (People v. Miceli (2002) 104 Cal.App.4th 256, 269.)
              Here, the jury reasonably could conclude Jordan’s drawing of a loaded
weapon and using it in a threatening manner in an attempt to force Mendoza and Bravo
out of their home constituted assaults on both women. It is immaterial the victims
thwarted the infliction of injury by closing the door.




              1
                    We observe, “[t]he drawing of a weapon is generally evidence of an
intention to use it.” (Id. at p. 549; see People v. Chance (2008) 44 Cal.4th 1164, 1172 [it
is a defendant’s action enabling him to inflict a present injury that constitutes the actus
reus of assault; defendant’s act of pointing a gun at a place where he thought the victim
would appear established actus reus]; People v. Escobar (1992) 11 Cal.App.4th 502, 504-
505 [the defendant need not exhibit the weapon, or point or fire the weapon; the
defendant held concealed gun in a briefcase and victim standing in front of him heard
sound of the gun being cocked]; People v. Yslas (1865) 27 Cal. 630, 633-634 [the
defendant approached within seven or eight feet of the victim with a raised hatchet, but
the victim escaped injury by running to the next room and locking the door; Yslas
committed assault, even though he never closed the distance between himself and the
victim, or swung the hatchet]; People v. Hunter (1925) 71 Cal.App. 315, 318-319 [the
victim jumped out a window as the defendant tried to pull a gun from his sock; Hunter
committed assault, even though the victim was gone before he could deploy his
weapon].)

                                              10
                                        III
                                   DISPOSITION
            The judgment is affirmed.



                                              ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




                                        11
