Filed 5/31/13 P. v. Martinez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063957
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CRL003761)
                   v.

JERRY GALINDO MARTINEZ,                                                                  OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Merced County. Donald J.
Proietti, Judge.
         James M. Crawford, 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, Julie A. Hokans and John W.
Powell, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       A jury convicted appellant Jerry Galindo Martinez of (1) stalking while a court
order was in effect (Pen. Code, § 646.9, subd. (b),1 count 1), (2) attempting to dissuade a
witness from prosecuting a crime (§ 136.1, subd. (b)(2), count 2), (3) attempting to
prevent and dissuade a witness from testifying (§ 136.1, subd. (a)(2), count 3),
(4) 11 counts of making criminal threats (§ 422, counts 4 through 14), (5) 14 counts of
misdemeanor disobeying a court order (§ 273.6, subd. (a), counts 15 through 27 and 29),
and (6) misdemeanor resisting a police officer (§ 148, subd. (a)(1), count 33).
       Martinez challenges the sufficiency of the evidence to support the stalking and
criminal threats convictions. He also contends the trial court erred by (1) admitting
evidence of a prior act of domestic violence, (2) failing to issue a unanimity instruction
on the stalking offense, (3) failing to instruct sua sponte on the lesser included offense of
attempted criminal threats, and (4) imposing consecutive terms when sentencing.
       We agree there was insufficient evidence to sustain the criminal threats conviction
on count 7. We reject all of Martinez‟s other contentions. We thus will reverse the count
7 conviction and affirm the judgment in all other respects.
                      FACTUAL AND PROCEDURAL SUMMARY
       Elizabeth Orduno dated Martinez for about four years. It was a volatile
relationship and they argued frequently. They had a child together, a daughter, who was
three years old at the time of trial.
       On July 22, 2009, a restraining order was issued that prohibited Martinez from
contacting Orduno. The restraining order was the result of an incident of domestic
violence committed by Martinez against Orduno. The restraining order was to remain in
effect until July 14, 2012.
       On June 24, 2010, Martinez sent three threatening text messages to Orduno‟s
sister, Amanda. The threats were directed at Orduno. The messages read: (1) “Watch.
       1All   further statutory references are to the Penal Code unless otherwise stated.



                                               2.
She pushed me too far. Something is going to happen to her”; (2) “I‟m going to fuck all
you niggas off.” “[I]f you have to get my girl, I‟m going to get my kid, and if [Orduno]
don‟t call me, I‟m going to burn her grandma‟s house down”; and (3) “I‟m on my way u
better get ready for war because she is there ha ha mother fuckers.”
       Amanda was scared by these messages and notified the authorities. Sheriff‟s
Deputy William Hibdon was dispatched in response to the call. When Hibdon arrived,
Amanda appeared frightened. After reading the text messages, Hibdon called Orduno,
who sounded nervous and frightened. Orduno was scared for her daughter‟s safety.
Martinez was convicted of a misdemeanor in connection with the text messages sent to
Amanda.
       On September 3, 2010, around 5:39 p.m., Police Officer Jesus Parras was
dispatched to an address where a caller indicated an individual was violating a court
order. Parras arrived at the address and spoke with Orduno. She appeared to be nervous,
scared, and upset. Orduno had received two threatening voice mail messages and
multiple threatening text messages from Martinez during the day.
       In the first voice mail, Martinez used multiple profanity and other offensive words.
The message concluded with “Do what the fuck you want just don‟t let me catch you
slippin‟ cause I‟m gonna slash you when I catch you. And I‟ll be out looking for your ass
tonight.” The second voice mail also included profanity and contained several more
threats, including: “I‟m not playing with you, I will fucking kill you,” “You better
fucking die bitch,” “Gonna shoot your mother fucking ass bitch,” “I hope you fucking
scared bitch,” and “I‟m fucking taking your life bitch.” The voice mails became the basis
of the count 4 offense.
       After playing the voice mails for Parras, Orduno used her cell phone to e-mail the
10 text messages to Parras. The 10 text messages read:




                                            3.
      1. “I not stopin till ur daed bitch to nite” (count 5);

      2. “Nope bitch u got another thing cum u fucked wit the wrong person oh
         ya im goin around tonite doin damage u think dis is a game bitch d”
         (count 6);

      3. “Bitch plzz i changen 4 no one bitch exspecaly a bitch like u” (count 7);

      4. “Pick up u scared like a bitch u wer never goin to cum ova ene ways u
         think im stupid i know ur another guy bitch i will catch u both e” (count
         8);

      5. “I jus got my gun back to day to bitch best beleave im goin to make it
         worth it u fucken dumd ass slut u dont know how to keep ur leggs”
         (count 9);

      6. “I jus left ur nanas im on my way over to wer ur at trust me i will find u
         after I go threw a coupal house watch bitch I got sumthing f” (count 10);

      7. “I told u bitch dont fuck wit me but noo u always set me off wats next
         bitch u cum n c me now u cant cuz im invisable bitch” (count 11);

      8. “I want u dead im sick of u playen me for foo i dnt fuck wer ur at im
         shooting everything watch bitch” (count 12);

      9. “Bitch ur fucken threw wen i c u yes i do have a gun now bitch u better
         run cuz im goin to shoot ur ass bitch n who ever ur wit u thin” (count
         13);

      10. “Fucken scandolous ass bitch im goin to fuck kill u bitch” (count 14).
      Orduno told Parras she was afraid. She stated she had been sleeping with a knife
under her pillow and was not sleeping in the living room area of the house because she
was afraid Martinez would shoot at the house. Parras issued an alert to take Martinez
into custody. After Parras left, Orduno spoke with Martinez around 8:00 p.m. that night
and again around midnight. In the early morning of September 4, 2010, Orduno met up
with Martinez and they went to a local park to have sex.
      Later on September 4, Parras saw Martinez in the passenger seat of a parked
vehicle; Martinez‟s cousin also was in the car. Parras called for backup and the two were
taken into custody. Martinez was transported to jail, where he was given warnings

                                             4.
pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Martinez spoke with the authorities
and at first “refused to admit to anything.” Subsequently, in the same interview,
Martinez claimed he was drunk and did not remember anything and then claimed he did
recall sending the messages but had never threatened Orduno. Martinez claimed he loved
Orduno and did not want to kill her but had intended to scare her.
       Martinez called Orduno from the jail on September 4. In that recorded jailhouse
conversation, Orduno stated:

       “I‟m gonna actually be able to fuckin‟ walk the streets safe and not have to
       look over my fuckin‟ shoulder, okay? You did this to yourself. I didn‟t
       fuckin‟ do anything to you. I told you you can‟t say these things, you can‟t
       do these things. You need to fucking learn.”
       The Merced County District Attorney filed an information charging Martinez with
33 separate offenses. Prior to trial, the trial court granted the prosecution‟s motion to
dismiss four counts.
       At trial, Orduno testified that she was not frightened by Martinez‟s voice mail or
text messages. She acknowledged, though, that her statements to Parras about sleeping
with a knife under her pillow and the reason she would not sleep in the living room area
of her home were true. Orduno claimed her family had pressured her to call the police;
she feared if she did not do so, her family would kick her out of the house.
       Parras testified regarding the multiple voice mail and text messages from Martinez
and his (Parra‟s) conversation with Orduno. Amanda and Hibdon testified regarding the
text messages Martinez sent to Amanda in 2010. Martinez‟s pretrial statements and the
jailhouse call between Martinez and Orduno were admitted into evidence.
       The prosecution presented testimony from Detective Justin Melden, who qualified
as an expert on domestic violence. Melden testified that victims of domestic violence
often recant their pretrial statements about incidents of abuse. Melden also testified to
what law enforcement officers refer to as the cycle of violence: a violent incident,
followed by a calm phase, the make-up phase, the tension phase, and then another violent

                                              5.
incident, with the cycle repeating itself. He opined that the cycle can complete itself
within as little as one hour or be drawn out over a number of weeks; the cycle repeats
itself numerous times in an abusive relationship.
       The jury convicted Martinez of all remaining 29 charges. The trial court found
probation had been violated in three other cases. At the sentencing hearing, the trial court
imposed a sentence of 17 years 4 months in the instant case and in the three cases in
which probation had been violated.
                                        DISCUSSION
I.     Sufficiency of the Evidence
       Martinez challenges the sufficiency of the evidence to support the stalking and
criminal threats convictions. With the exception of the count 7 conviction for criminal
threats, the People disagree with Martinez‟s contentions.
       Standard of Review
       In assessing a claim of sufficiency of evidence, the reviewing court‟s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence that is reasonable, credible, and of solid value such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
(People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the
same effect: Under principles of federal due process, review for sufficiency of evidence
entails not the determination whether the reviewing court itself believes the evidence at
trial establishes guilt beyond a reasonable doubt, but, instead, 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. (Jackson v.
Virginia (1979) 443 U.S. 307, 317-320.)
       The standard of review is the same in cases in which the prosecution relies mainly
on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) “„“Although
it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is

                                               6.
susceptible of two interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court[,] which must be convinced of the
defendant‟s guilt beyond a reasonable doubt. „“ If the circumstances reasonably justify
the trier of fact‟s findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not warrant a reversal
of the judgment.”‟ [Citations.]”‟ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1,
11.)
       Stalking
       Martinez argues there was no evidence Orduno suffered substantial emotional
distress; thus, he claims there was no harassment within the meaning of section 646.9.
       A conviction under section 646.9 requires that the defendant have (1) willfully,
maliciously, and repeatedly followed or harassed another person, (2) conveyed a credible
threat, and (3) intended the threat to place the person in reasonable fear of his or her
safety or the safety of immediate family. (§ 646.9, subd. (a).) Section 646.9, subdivision
(e) defines “harass” as engaging in a knowing and willful course of conduct directed at a
specific person that seriously alarms, annoys, torments, or terrorizes the person and
serves no legitimate purpose.
       Martinez quotes and relies upon a prior definition of the term “harass” that was
contained in the statute from 1990 to 2002. (Stats. 1990, ch. 1527, § 1, pp. 7143-7144.)
Section 646.9, however, was amended in 2002. (Stats. 2002, ch. 832, § 1.) The case
cited by Martinez in support of his contention, People v. Ewing (1999) 76 Cal.App.4th
199, was decided before the 2002 amendments to section 646.9 and therefore is not
persuasive.
       The prosecution here was required to prove that Martinez engaged in a knowing
and willful course of conduct directed at Orduno that seriously alarmed, annoyed,
tormented or terrorized her. The prosecution was not required to establish that Orduno
suffered substantial emotional distress. The prosecution established that Martinez sent a

                                              7.
series of messages to Orduno, both voice mail and text. Those messages conveyed
threats of harm to Orduno and/or to her immediate family; and Orduno was seriously
alarmed about the threats, which is why she notified police and took to sleeping with a
knife under her pillow for protection.
       We think People v. Uecker (2009) 172 Cal.App.4th 583, 595-596 (Uecker) is
helpful. In Uecker, the defendant placed calls to a real estate agent but refused to tell her
how he obtained her contact information and refused to provide the information she
needed in order to determine if the defendant qualified to purchase a home. When the
agent tried to cut off contact, the defendant continued to call her. The agent stated the
defendant‟s actions made her feel “afraid and trapped.” (Id. at p. 596.) The appellate
court upheld a conviction for stalking under section 646.9. (Ibid.)
       Like Uecker, the evidence here established that Martinez‟s conduct constituted
harassment of Orduno under section 646.9.
       Criminal Threats Convictions
       Martinez raises two challenges to his criminal threats convictions. First, he
contends all must be reversed because there was insufficient evidence the threats caused
Orduno to be in sustained fear, as required by section 422. Second, he argues that the
content of the messages in counts 7 and 11 did not constitute a credible threat.
              Sustained Fear Analysis
       As used in section 422, “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.]” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
“Fifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has
threatened to kill the victim and her daughter, is more than sufficient to constitute
„sustained‟ fear for purposes of this element of section 422.” (Ibid.) “Sustained” fear
may amount to less than one minute, depending on the circumstances, such as when a

                                              8.
defendant brandishes a weapon and threatens to kill someone. (People v. Fierro (2010)
180 Cal.App.4th 1342, 1349 (Fierro).)
       The evidence established that Martinez sent numerous messages to Orduno, both
text and voice mail, over a period of time on September 3, 2010. When Parras was
dispatched to Orduno‟s residence the evening of September 3 in response to a call that
Martinez was violating a court restraining order, Parras spoke to Orduno. She appeared
nervous, scared, and upset. She shared with Parras the voice mail and text messages she
had received from Martinez that day. She told Parras she was afraid and was sleeping
with a knife under her pillow. She also stated she was scared that Martinez was going to
shoot at her house.
       At trial, Orduno contradicted her statement to Parras and claimed she was not
frightened by Martinez‟s messages. She acknowledged, though, that she had been
sleeping with a knife under her pillow and was afraid to sleep in the living room of her
house. Melden testified as an expert on domestic violence and informed the jury that
victims of domestic violence often recant their statements to authorities about domestic
violence.
       Obviously, there was conflicting testimony—Parras testified to Orduno‟s
statements to authorities about the domestic violence; Orduno recanted some of her
statements in her trial testimony; and Melden explained victims of domestic violence
often recant their testimony.
       It is the province of the jury to assess credibility of witnesses and resolve conflicts
in evidence. “[A] reviewing court resolves neither credibility issues nor evidentiary
conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the
exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is
physically impossible or inherently improbable, testimony of a single witness is sufficient
to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)



                                              9.
       The jurors here were entitled to credit Parras‟s testimony regarding Orduno‟s
statements to authorities at the time of the events, to reject Orduno‟s testimony recanting
her statements to Parras, and to rely upon Melden‟s testimony to explain Orduno‟s
actions.
              Credible Threat Analysis
       As to count 7, the People concede that the content of the message did not convey a
credible threat and thus the conviction should be reversed. The text message that was the
basis of the conviction read: “Bitch plzz i changen 4 no one bitch exspecaly a bitch like
u.” Though crude and offensive, this message did not contain a threat of death or great
bodily injury to any person and we therefore will reverse the count 7 conviction.
       Count 11, however, was supported by substantial evidence. The text message that
formed the basis of the conviction read: “I told u bitch dont fuck wit me but noo u
always set me off wats next bitch u cum n c me now u cant cuz im invisable bitch.”
       An implied or conditional threat, which this was, may violate section 422.
Otherwise innocuous language has been deemed a violation of the statute if the words are
understood as a threat of harm when looking at the circumstances and conduct of the
defendant. (See Mendoza (1997) 59 Cal.App.4th 1333, 1340 (Mendoza).) Similarly,
threats made conditional on conduct that is highly likely to occur are punishable under
the statute. (See People v. Bolin (1998) 18 Cal.4th 297, 339; People v. Dias (1997) 52
Cal.App.4th 46, 53.) “The jury is „free to interpret the words spoken from all of the
surrounding circumstances of the case.‟ [Citation.]” (People v. Hamlin (2009) 170
Cal.App.4th 1412, 1433.)
       Here, taken in context, Martinez‟s threat of harm to Orduno was clear. Martinez
had left voice mail and text messages telling Orduno he would be out looking for her and
intended to slash, shoot, or otherwise harm her if he saw her. Telling her “dont fuck wit
me,” that she “set” him “off,” and that he was now “invisable” reasonably can be



                                            10.
interpreted as Martinez sending Orduno a message reminding her that he was angry with
her, watching for her, and waiting for an opportune moment to cause her harm.
       The jury reasonably concluded the text message forming the basis of the count 11
conviction, under the circumstances, constituted a threat under section 422. (People v.
Wilson (2010) 186 Cal.App.4th 789, 807.)
       Conclusion
       Section 422 targets those who, like Martinez, seek to instill fear in others. (In re
Ryan D. (2002) 100 Cal.App.4th 854, 861.) There was sufficient evidence to support the
counts 4, 5, 6, 8, 9, 10, 11, 12, 13, and 14 convictions for violating section 422. The
evidence was insufficient to support the count 7 conviction.
II.    Admission of Prior Acts Evidence
       The prosecution filed a motion in limine seeking to admit evidence of a prior act
of domestic violence committed by Martinez, for which he was convicted of a
misdemeanor. The motion sought to admit the evidence pursuant to Evidence Code
sections 1101, prior crimes or acts, and 1109, other acts of domestic violence. Defense
counsel objected to the admission of this evidence on the basis that “Martinez already
entered a plea on that. I don‟t understand the relevance.”
       The trial court overruled the relevancy objection and indicated the “testimony will
be admitted subject to any objections to the testimony.” Defense counsel renewed an
objection to the testimony and clarified for the trial court that the objection was only on
the basis of relevancy.
       On appeal Martinez contends the trial court erred in admitting the evidence,
characterizing the act as against Amanda. He thus argues that it was not an act of
domestic violence, as defined by statute, because he and Amanda were not in a
relationship. He also claims that since he and Amanda were not in a relationship, the
prior act was irrelevant. Conversely, he argues the testimony was more prejudicial than



                                             11.
probative; consequently, it was error under Evidence Code section 352 to admit the
testimony.
       We apply an abuse of discretion standard of review to any ruling by a trial court
on the admissibility of evidence. (People v. Waidla (2000) 22 Cal.4th 690, 724
(Waidla).)
       Based on our review, we conclude the trial court did not abuse its discretion in
admitting this evidence for two reasons. First, Martinez did not challenge the admission
of the evidence in the trial court on the basis that it did not qualify as an act of domestic
violence or that the probative value was outweighed by the prejudicial impact.
Therefore, he has forfeited these contentions on appeal. Second, on the merits of the
argument, the act of domestic violence was directed at Orduno, even if communicated
through Amanda, and was relevant.
       In general, all relevant evidence is admissible. (People v. Carter (2005) 36
Cal.4th 1114, 1166.) Trial courts have broad discretion in determining relevancy.
(People v. Hoyos (2007) 41 Cal.4th 872, 898.) Relevant evidence is evidence that tends
to prove or disprove any disputed fact that is of consequence to the determination of the
action. (Evid. Code, § 210.) Evidence of prior offenses is relevant if it tends to establish
motive, intent, identity, plan, absence of mistake, and any other fact that may be relevant.
(People v. Catlin (2001) 26 Cal.4th 81, 145-146.) Martinez‟s not guilty plea put in issue
all the elements of the charged offenses. (People v. Balcom (1994) 7 Cal.4th 414, 422.)
       Amanda and Hibdon testified regarding text messages sent by Martinez to
Amanda‟s cell phone threatening Orduno and her family. Amanda testified she received
text messages from Martinez on June 24, 2010, that were threatening and directed toward
Orduno. Hibdon testified to the content of the messages: “Watch. She pushed me too
far. Something is going to happen to her.” The second message stated, “I‟m going to
fuck all you niggas off.” “[I]f you have to get my girl, I‟m going to get my kid, and if
[Orduno] don‟t call me, I‟m going to burn her grandma‟s house down.” In the third

                                              12.
message, Martinez stated, “I‟m on my way u better get ready for war because she is there
ha ha mother fuckers.” When Hibdon spoke to Orduno on the phone about these text
messages, she sounded frightened.
       The text messages sent to Amanda were directed at Orduno, were similar in nature
to the text and voice mail messages he sent directly to Orduno, and were sent during the
same period of time as the messages that were the subject of the charged offenses.
       As Martinez claimed he did not intend to harm or threaten harm to Orduno in any
of the messages, his intent was in issue. That Martinez recently had sent text messages
designed to be threatening toward Orduno and had suffered a conviction for that conduct
was additional relevant evidence tending to establish Martinez‟s intent when he sent the
text and voice mail messages to Orduno.
       The surrounding circumstances, including the parties‟ history, may be relevant to a
determination of the issues. (Mendoza, supra, 59 Cal.App.4th at p. 1340, superseded by
statute on other grounds as stated in People v. Franz (2001) 88 Cal.App.4th 1426, 1442.)
Martinez‟s history of domestic violence against Orduno, including his prior conviction,
were relevant to help establish that she took the threats seriously at the time they were
made and she actually and reasonably was in fear.
       Moreover, the record provides no reason to conclude the jury misapplied this
evidence. The trial court properly instructed the jury on the use of this evidence. We
presume the jurors followed the instructions. (People v. Gonzales and Soliz (2011) 52
Cal.4th 254, 292.)
       The trial court did not err in admitting evidence of the text messages sent to
Amanda.
III.   Instructional Error
       Martinez contends the trial court erred when it failed sua sponte to give a
unanimity instruction requiring the jurors to agree unanimously on the specific conduct



                                            13.
that constituted harassment for purposes of the stalking alleged in count 1. His
contention fails because no unanimity instruction was required.
          Martinez also maintains the trial court erred prejudicially when it failed to instruct
the jury sua sponte on the crime of attempted criminal threats. As noted in part I., ante,
the evidence was more than sufficient to support all but one of the criminal threats
counts. Moreover, error, if any, was harmless.
          Unanimity Instruction
          A unanimity instruction is not required when the statute contemplates a continuous
course of conduct of a series of acts over a period of time. (People v. Thompson (1995)
36 Cal.App.4th 843, 851.) Stalking is a crime that contemplates a continuous course of
conduct. (People v. Zavala (2005) 130 Cal.App.4th 758, 769.) As the appellate court
stated in Zavala, “there is no need for a unanimity instruction as to individual acts within
the course of conduct, because the jury need only agree on whether the defendant
committed acts the net effect of which constitutes the statutory offense” of stalking.
(Ibid.)
          Regardless, the trial court did instruct the jury with a form of a unanimity
instruction addressing counts 1, 2, and 3. Martinez fails to acknowledge this instruction
in his opening brief and does not contend “the instruction as given was erroneous,
inadequate, or prejudicial.” (People v. Hayes (1990) 52 Cal.3d 577, 625.) If any further
clarifying or amplifying language was needed, Martinez had an obligation to request it in
the trial court or forfeit any claim of error. A “party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too general or incomplete
unless the party has requested appropriate clarifying or amplifying language.
[Citations.]” (People v. Andrews (1989) 49 Cal.3d 200, 218; see People v. Sully (1991)
53 Cal.3d 1195, 1218.)




                                                14.
       Attempted Criminal Threats
       Martinez contends there was no evidence Orduno was in sustained fear of death or
great bodily injury from any of the criminal threats and therefore the jury should have
been instructed sua sponte on attempted criminal threats.
       As discussed in part I., ante, there was substantial evidence Orduno was in
sustained fear from Martinez‟s threats. Consequently, we are upholding the convictions
on the section 422 offenses, with the exception of count 7 where we concluded the text
message did not constitute a threat. We need not repeat our analysis of the sufficiency of
the evidence of sustained fear.
       The question of whether the jury should have been instructed about a lesser
included offense is reviewed de novo on appeal. (Waidla, supra, 22 Cal.4th at p. 733.)
“When there is evidence from which the jury could find the lesser included offense was
committed, the trial court must instruct on it even if inconsistent with the defense elected
by the defendant. [Citations.]” (People v. Brito (1991) 232 Cal.App.3d 316, 326, fn. 9.)
Failure to instruct on a lesser included offense requires reversal if it is reasonably
probable the jury would have returned a verdict more favorable to the defendant absent
the error. (People v. Breverman (1998) 19 Cal.4th 142, 164-165 (Breverman).)
       We acknowledge there was some conflicting evidence on the issue of sustained
fear because Orduno recanted in part her pretrial statements to authorities. We, however,
conclude the evidence of sustained fear was overwhelming. This conclusion is based on
(1) Orduno‟s continued acknowledgement at trial that the voice mail and text messages
from Martinez caused her to sleep with a knife under her pillow, (2) Parras‟s testimony
regarding Orduno‟s pretrial statements and his own observations, (3) Melden‟s expert
testimony that domestic violence victims often recant, and (4) case law establishing that
the sustained fear element may be brief. Any evidence of a lack of sustained fear was
very slight and, as the trial court necessarily determined, not substantial enough to



                                             15.
warrant consideration by the jury of the lesser offense of attempted criminal threats.
(Breverman, supra, 19 Cal.4th at pp. 161-162.)
       Regardless, assuming it was error to fail to instruct on attempted criminal threats,
any error was harmless. (Breverman, supra, 19 Cal.4th at p. 178.) First, as we noted, the
evidence of sustained fear was overwhelming. The sustained fear required by section 422
may amount to less than one minute, depending on the circumstances, and certainly the
fear that causes one to sleep with a knife under a pillow at night is of sufficient length to
satisfy the statutory requirement of sustained fear. (Fierro, supra, 180 Cal.App.4th at
p. 1349.)
       Second, there is no claim by Martinez that the jury instructions on the substantive
offense of violating section 422 were deficient or altered the prosecution‟s burden of
proof. Absent some affirmative indication in the record to the contrary, and there is none
here, we presume the jury followed the instructions given. (People v. Holt (1997) 15
Cal.4th 619, 662.) Therefore, the record establishes that the properly instructed jury
resolved the factual issue of whether the prosecution proved beyond a reasonable doubt
that Orduno suffered sustained fear adversely to Martinez and reversal is not required.
(Breverman, supra, 19 Cal.4th at p. 165.)
       Third, the elimination of a basis to find Martinez guilty could only have inured to
his benefit. The crime of attempted criminal threats required less proof in that the
prosecution was not required to prove beyond a reasonable doubt that Orduno suffered
sustained fear as a result of Martinez‟s threats. If the jury had not found the element of
sustained fear to have been proven beyond a reasonable doubt, it would have acquitted on
the criminal threats counts. Absent a showing of prejudice, a defendant may not
complain of instructional error favorable to him. (People v. Lee (1999) 20 Cal.4th 47,
57.)
       Under the facts of this case, it is not reasonably probable the result would have
been more favorable to Martinez if the jury had been instructed on attempted criminal

                                             16.
threats. Consequently, any error in failing to instruct the jury so is not prejudicial and
reversal is not required. (Breverman, supra, 19 Cal.4th at pp. 164-165.)
IV.     Sentencing
        Martinez contends the trial court erred when it imposed consecutive sentences for
each of his 11 criminal threats convictions. He argues the consecutive sentences were
improper under section 654 because the crimes constituted a single, indivisible course of
conduct. Section 654, subdivision (a) provides:

        “An act or omission that is punishable in different ways by different
        provisions of law shall be punished under the provision that provides for
        the longest potential term of imprisonment, but in no case shall the act or
        omission be punished under more than one provision. An acquittal or
        conviction and sentence under any one bars a prosecution for the same act
        or omission under any other.”
        “Whether a course of criminal conduct is divisible and therefore gives rise to more
than one act within the meaning of section 654 depends on the intent and objective of the
actor.” (Neal v. State of California (1960) 55 Cal.2d 11, 19; see People v. Latimer (1993)
5 Cal.4th 1203, 1208.) Whether there was more than one intent or objective is a question
of fact for the trial court and the trial court‟s determination will be upheld on appeal if
there is substantial evidence to support it. (People v. Nelson (1989) 211 Cal.App.3d 634,
638.)
        At sentencing, defense counsel argued that the sentences imposed on counts 4
through 14 should be stayed pursuant to section 654. The trial court rejected Martinez‟s
argument that the threatening messages were all an indivisible course of conduct and
found that even though the voice mails and text messages were sent “over a relatively
short period of time, each continued separately.” Substantial evidence supported the trial
court‟s finding.
        Each threatening message was sent separately, each message contained different
threatening language, and each was a complete and discrete act under section 422. In



                                             17.
count 4, Martinez threatened in a voice mail to “slash” Orduno; in count 5, he threatened
in a text message he would not stop until Orduno was dead; and in count 6, Martinez
threatened in a text message to do “damage” that night. The count 8 text message warned
Orduno about being with another male and that Martinez would “catch” them; in count 9,
Martinez sent a text stating he had just gotten his gun back and would “make it worth it”;
and in count, 10 Martinez‟s text stated he had just left Orduno‟s “nana[‟]s” and was on
his way to her location, where he would search every house until he found her. In count
11 Martinez warned Orduno “dont fuck wit me” and that she “always set [him] off”; the
count 12 text told Orduno “I want u dead”; in count 13, Martinez told her he had a gun
and would shoot her and anyone she was with; and in count 14, Martinez stated he was
going to “fuck kill you bitch.”
       Although Martinez‟s voice mail and text messages were sent to Orduno on one
day throughout the day, that does not require as a matter of law that they be treated as an
indivisible course of conduct for purposes of section 654. (See People v. Felix (2001) 92
Cal.App.4th 905, 915-916). In Felix the appellate court concluded the defendant could
be punished for two criminal threats made on the same date and the trial court reasonably
could infer that because the defendant was angry, he intended the second threat to cause
new emotional harm. (Ibid.)
       As in Felix, each of Martinez‟s criminal acts was discreet and complete when
committed and a reasonable inference can be made that each voice mail and text was
intended to cause new emotional harm. The trial court did not err in imposing
consecutive sentences for counts 4, 5, 6, 8, 9, 10, 11, 12, 13, and 14.




                                             18.
                                     DISPOSITION
       The count 7 conviction is reversed; in all other respects the judgment is affirmed.
The trial court shall prepare an amended abstract of judgment and forward it to the
appropriate authorities.

                                                                _____________________
                                                                  CORNELL, Acting P.J.


WE CONCUR:


 _____________________
GOMES, J.


 _____________________
POOCHIGIAN, J.




                                            19.
