Filed 7/30/14 P. v. Gonzalez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057526

v.                                                                       (Super.Ct.No. RIF1100847)

FRED JAVIER GONZALEZ,                                                    OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Michael B. Donner,

Judge. Affirmed in part; reversed in part with directions

         John E. Edwards, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Elizabeth M.

Carino, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
          A jury convicted defendant, Fred Gonzales, of four counts of making criminal

threats (Pen. Code, § 422)1 and five counts of the misdemeanor of making

annoying/harassing phone calls (§ 653m, subd. (b)). He was sentenced on the felonies to

four years in prison and on each of the misdemeanors to a concurrent six month term. He

appeals, claiming all of his convictions should be reversed for various reasons, all of

which we reject. However, we reverse two of his misdemeanor convictions for jury

instruction error and direct the trial court to omit reference to them in the minutes of the

sentencing hearing should the People opt not to retry him for them. Otherwise, we

affirm.

                                                  FACTS

          The victim worked for defendant in his insurance agency between February and

July, 2009 and interacted with him daily during that period. As his business began to go

bad in June 2009, defendant became erratic and moody and the victim eventually quit.

After the victim left his employ, defendant began calling her on her cell phone. These

calls, and those that followed, will be described later in this opinion. In April 2010, the

victim began working at an insurance agency unconnected to defendant, which will

hereafter be referred to as the Moreno Valley insurance office. The victim’s female

coworker was defendant’s office manager at his insurance agency and worked daily with

defendant between February 2009 and June 2009, when defendant let her go because he

          1   All further statutory references are to the Penal Code unless otherwise indicated.




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did not have enough money to pay her. In September 2009, defendant began calling the

victim’s female coworker, which will be described later in this opinion. Also in April

2010, the victim’s female coworker began working at the Moreno Valley insurance

office.

          1. Convictions for Making Annoying/Harassing Calls

          The First Amended Information charged defendant with five counts of making

annoying calls “on or about July 2010 through and including December 2010 . . . .”

          The victim’s female coworker testified that defendant called her for the first time

on September 5, 2009, during which he referred to her as a fucking bitch. He called

again on December 24, 2009 and said, “Fuck you.” She hung up, he called right back

and said, “Nigga.” On January 1, 2010, he contacted her, wishing her a Happy New

Year, then followed it up with, “I didn’t mean you, bitch.” In February 2010, she

received 12 texts or phone calls from defendant. Some came at 3:00 or 5:00 a.m., some

were to her home phone, there was an immediate hang up, then an immediate follow up

call to her cell phone, and so on for minutes. In February, she reported the calls to the

police and changed both her cell and home phone numbers. She did not hear from

defendant again until she began working at the Moreno Valley insurance office in April

2010. Between then and July 11, 2010, there were about 25 to 50 or over 50 calls from

defendant to that office. On July 12, 2010, she and her fellow employees began keeping

a log of all the suspicious calls that came into the office. In July 2010, defendant called

the office about 90 times, five of which she received herself; in August 2010, 113 times,



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12 of which she received herself, and during one of which defendant left a voice mail that

included the word, “bitch.” On August 24, 2010, defendant called and referred to people

as “bitch” and “ho.” The female coworker replied, “[Defendant’s first name], come on.

Please[,]” and she hung up. Defendant called with the same frequency in September

2010 as he had in August, some of which calls the female coworker received herself.

During one such call, defendant, attempting to disguise his voice, asked where the office

was located and when the female coworker told him where it was, he replied, “Oh, out

there. Where are all the Niggers living out there? I’m not coming there.” She retorted,

“[Defendant’s first name], seriously” and hung up. Defendant’s call frequency began to

slow in October and November. The victim or the victim’s male coworker answered the

majority of the calls, and only the three of them worked in the office.

       The victim testified that after working daily for defendant in his insurance agency

for five months, she quit in July 2009 because defendant got angry at her. Thereafter,

defendant called her on her cell phone. In the beginning, he called about once a month

and left a voice mail message saying that the victim was a whore and fat and a “cunt.”

When the calls increased in the Fall of 2009, she changed her cell phone number.

Unfortunately, this new number was placed on paperwork for her application for benefits

from the Employment Development Department, of which defendant, as her former

employer, received a copy, and she began receiving calls at the new number about once a

week, during which things were said that defendant had said before. She changed her

cell phone number again in early 2010 and did not hear from defendant until she, too,



                                             4
began working at the Moreno Valley insurance office in May 2010 and defendant called

many times a day, referring to her as a “fat bitch.” She recorded some of the calls

defendant made and some of these recordings were played for the jury. During those

calls, which the victim answered, the caller used, inter alia, the words, “fucking,”

“whore,” “bitch,” “pig,” and “blow job.” She, her female coworker, her male coworker

and the manager/owner of the agency kept track of these calls in a log, the latter marking

down two calls.

       A male coworker testified that he began working at the Moreno Valley insurance

office in April 2010 and he did not know defendant. Many repeat calls were made to the

office during which the caller would hang up or ask pretense questions. During one, the

caller said he would not come to the office because it was in the ghetto and he used “an

explicit term.” Daily, sometimes more than three to four times an hour, the caller would

rant about the victim and call her names. The male coworker recognized the voice of the

caller as being the same voice he had heard over and over. After a couple of weeks of the

victim receiving calls and reacting very badly to them, the male coworker began

answering most of the calls to prevent the victim from having to hear them.

       A detective testified that according to the records for defendant’s cell phone,

defendant called the Moreno Valley insurance office more than 400 times between July

and December, 2010—often repeat calls in quick succession. There were more calls in

July and August, at more than 100 each month, and less in December. The majority of

the time, defendant dialed star 67, before dialing the office’s phone number, which



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renders whoever answered the phone at the office unable to identify the caller’s number.

Defendant’s phone records, which were shown to the jury, verified all of this.

       The jury was instructed that defendant was guilty of making annoying phone calls

if he “made repeated phone calls” to the victim, her female coworker, her male coworker

and the Moreno Valley insurance office. During argument to the jury, the prosecutor said

of these crimes, “When you’re in the [jury deliberation room], . . . I encourage you to

look at . . . the defendant’s phone records. . . . This is what’s going to help you when you

look at [these c]ounts . . . . And there’s . . . only five counts for annoying phone calls,

even though he made hundreds. [¶] I encourage you to look at the counts this way:

Counts 5, 6 and 7, I would apply to the three months that he called . . . [the Moreno

Valley insurance office] over a hundred times—July, August and September. . . . [¶]

And then Counts 8 and 9, I encourage you to apply to the two people, specifically that

those annoying calls are directed to [the victim’s female coworker] and [the victim]. The

defendant’s not charged with all of the annoying calls that went on for a year before and

all the time [the victim’s female coworker and the victim] had to change their phone

numbers. And . . . you heard that [the victim’s female coworker] would receive calls at

home on her home phone, cell phone at 3:00 a.m. . . . He’s not even charged with that.

[¶] He’s only charged with when the police stepped in, and he continued to call between

July and September, December 2010. . . . You know that all those calls were directed to

[the victim] and [the victim’s female coworker] at their place of work at [the Moreno

Valley insurance office]. [¶] . . . I started to highlight every call from the defendant’s cell



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phone to [the Moreno Valley insurance office]. And I had to stop at about page 68

because my highlighter was running out of ink. Look through th[e phone records].

You’ll see this is just one day alone. Multiple calls one right after another. Over and

over and over.[2] And I tabbed some of the pages for you to save you time, just to show

you how many calls.” “The time frame [for all the calls about which the victim and her

female coworker testified] is from before any of these charges we’re talking about—[in]

8/9/09, in February of 2010, all the way to June 2010. . . . The reason you heard [about

these calls] is because it laid a foundation . . . for how the victim . . . [and her female

coworker] knew [defendant’s] voice—how they had received these calls, knew his voice,

sometimes disguised, sometimes not, for months and months.”

       Defendant begins his attack on his conviction for these offenses3 by asserting,

“[t]he prosecutor did not explain why she chose to diverge from the complaint, in which

all five . . . counts plead the identical timing for the calls.” Defendant cites no authority

holding that the prosecutor cannot make an election and relate different counts that have

been plead with the same time frame, to different acts. Defendant then asserts, “[t]he

prosecutor did not specify which counts she would ‘encourage’ the jury apply to which

months.” The record belies this assertion. She clearly related counts 5, 6 and 7 to the

       2 While we have no way of knowing to what pages of defendant’s phone records
the prosecutor was referring, if it was pages 25-27 or pages 33-34 or pages 38-40 or
pages 42-45 or pages 49-51 or 52-54 or pages 67-68, the prosecutor was entirely correct.

       3 We bypass the issues of waiver and incompetency of defense counsel at trial by
addressing defendant’s contentions on their merits.



                                               7
months of July, August and September, 2010, respectively. Defendant continues, “[The

prosecutor] never specified that the jury could only convict [defendant] if it found that

[defendant] made those calls in those months, or that its finding on those counts must be

based only upon calls to [the Moreno Valley insurance office].” We disagree with both

assertions. The prosecutor clearly made an election that count 5 was to be based on calls

that were made during July 2010, count 6 was to be based on calls made during August

2010 and count 7 on calls made during September 2010. Therefore, contrary to

defendant’s contention, there was no need to give a unanimity instruction as to those

counts. (People v. Jennings (2010) 50 Cal.4th 616, 679, 680.) As to where the calls were

directed, the only evidence adduced as to the calls during this period were calls to the

Moreno Valley insurance office. Both the victim and her female coworker testified that

defendant stopped calling their home and cell phones when they changed the numbers to

them before beginning work at the Moreno Valley insurance office in the Spring of 2010.

Moreover, the prosecutor pointed to the calls defendant made from his cell phone to the

Moreno Valley insurance office during her argument concerning these counts and to no

other calls.4 The only problem we detect is with counts 8 and 9, which the prosecutor


       4 Defendant admits as much when he states in his opening brief, “In her closing
argument, the prosecutor argued that counts five, six and seven all could be applied based
upon the calls place to [the Moreno Valley insurance office].” Defendant can’t have it
both ways. Additionally, in arguing that there was insufficient proof of these crimes,
defense counsel said to the jury, “The . . . [prosecutor is] saying that you should convict
[defendant] for harassing phone calls to [the Moreno Valley insurance office].” For the
same reasons, we reject defendant’s related assertion that “There is . . . no way to

                                                                 [footnote continued on next page]


                                             8
elected to apply to calls during the July-December 2010 period that were received by the

victim and the victim’s female co-worker. The jury was not told that it could not use the

same calls it used to convict defendant of counts 5, 6 and 7 to also convict defendant of

these counts. In fact, the prosecutor’s argument was that all the calls which resulted in

counts 5 through 9 were “directed at” the victim and her female coworker.5 As such, the

jury should have been instructed that it could not use the same calls to convict defendant

of counts 8 and 9 that it used to convict him of counts 6, 7 and 8. Because of this, we

will reverse the convictions for count 8 and 9. Given that, we cannot agree with

defendant’s assertion that “it [is] impossible for this court to determine the basis for the

jury’s finding on” counts 6, 7 and 8. It is abundantly clear to us what the bases were.

Therefore, we disagree with defendant that his rights to due process and to a jury trial

were violated by the way this case was presented to the jury.

        Next, defendant asserts that his convictions for counts 5, 6 and 7 must be reversed

because the victim of those counts is the Moreno Valley insurance office and only a

natural person can be the victim of a violation of section 653m, subdivision (b). Section

653m, subdivision (b) provides, “Every person who, with intent to annoy or harass,

makes repeated telephone calls or makes repeated contact by means of an electronic


[footnote continued from previous page]
know . . . whether the jury considered phone calls outside of the July through December
timeframe charged in the complaint.”

        5   See the italicized portion of the prosecutor’s argument on page seven.



                                               9
communication device, or makes any combination of calls, or contact, to another person

is, whether or not conversation ensues from making the telephone call or contact by

means of an electronic communication device, guilty of a misdemeanor. Nothing in this

subdivision shall apply to telephone calls or electronic contacts made in good faith or

during the ordinary course and scope of business.” However, it is a matter we need not

resolve. The only evidence adduced at trial was that defendant made calls that were

answered by an employee of the Moreno Valley insurance office. No one testified that

employees of the office did not answer these calls—in fact, the male coworker suggested

that all calls were answered by one of the people working at the office out of an

abundance of caution that it might be a legitimate call. Additionally, the records of

defendant’s cell phone showed that many of the calls to the Moreno Valley insurance

office were answered. When defendant dialed the Moreno Valley insurance office’s

number, he was calling a human being, whom he expected to answer the phone.

Although the instruction allowed the jury to consider calls made to the Moreno Valley

insurance office, as differentiated from calls made to the victim, or her female coworker

or her male coworker, there is no reasonable likelihood that the jury convicted defendant

of the three counts based on calls for which those three persons did not pick up the phone.

(People v. Breverman (1998) 19 Cal.4th 142, 175 [defendant must show that it is

reasonably probable a result more favorable would have been reached absent the error].)

Moreover, the prosecutor asserted that it was the victim and her female coworker who




                                            10
were the victims of those counts, therefore, the prosecutor made an election that excluded

the Moreno Valley insurance office as the “entity” to whom the calls were made.

       2. Convictions for Making Criminal Threats

       The First Amended Information charged defendant with communicating a threat to

the victim on October 9, 2010, November 12, 2010 and November 19, 2010. It also

charged defendant with communicating a threat to the victim’s mother on December 6,

2010. The jury was instructed as to these counts, in pertinent part, that defendant

“willfully threatened to unlawfully kill . . . [the victim] and/or [the victim’s mother]” and

that “the threat actually caused [the victim] and/or [the victim’s mother] to be in

sustained fear for their own safety or for the safety of her immediate . . . family” which

included parents and children.

       In addition to a recording of the annoying/harassing calls mentioned above which

defendant made to the Moreno Valley insurance office, the jury also heard a recording of

a call to the office which the victim answered, during which defendant said to her in

Spanish two times that he was going to kill her. The victim testified that the first call

defendant made during which he threatened her occurred on October 9, 2010. The jury

also heard another recorded call to the Moreno Valley insurance office which the victim

answered during which defendant said, in Spanish, that he was going to kill the victim,

calling her a bitch. The victim testified that defendant threatened her life a second time

on November 12, 2010. The jury also heard another recorded call to the Moreno Valley

insurance office which the victim answered, during which defendant called her a fucking



                                             11
whore and said, in Spanish, that he was going to kill her mother, whom he named. The

victim testified that defendant threatened to kill her mother on November 19, 2010. The

victim testified that two or three separate times defendant threatened to kill her. The

victim testified that either in regard to the first call or in regard to all three calls,6 the

result was that she felt sick to her stomach, confused, worried and scared. As to the

latter, she explained that defendant was crazy and she did not know if he would actually

kill her or he was just saying that he would but she was afraid he would actually hurt her

or try to kill her. She testified that she told the Moreno Valley insurance office

owner/manager about the threats because she was afraid to walk out to her car and her

male coworker would walk her to her car almost every day for two months because she

didn’t know if something was going to happen to her. She also testified regarding the

calls during which defendant threatened to kill her that afterward she would walk away,

cry and be shaken. Beginning in September or October, a police detective came into the

Moreno Valley Insurance office and the victim gave her a copy of all the calls that were

recorded, which included the November 19 call.

       In reference to all of the calls from defendant, the victim’s female coworker

testified that sometimes the victim would cry or be terrified or not know, depending on

what had been said during the call. The victim’s male coworker testified, regarding all

the calls from defendant that the victim took, that the victim turned pale and started

       6 We say this because it cannot be determined with certainty whether the victim
was referencing all three calls or just the first one.



                                                12
crying hysterically. He added that after a couple of weeks of this, he began answering

most of the calls himself. He also testified that he had to walk the victim to her car every

day for a week or if he had to stay late, because the victim had been threatened with

bodily harm, and, thereafter, the victim parked in front of the Moreno Valley insurance

office.

          The victim’s mother testified that she had known defendant, having conversed

with him on three prior occasions, during one of which he had borrowed her car at her

home.7 On the day the victim was fired from defendant’s insurance agency, the victim’s

mother had watched as the out of control defendant yelled profanities at the victim and

threatened to call the police, while accusing the victim of stealing company property,

which was unfounded, in the presence of other employees. At the time, the victim lived

with her mother. On December 6, 2010, the mother received a phone call at her place of

employment, during which the caller, who claimed to be the mother’s cousin, told the

mother that “we’re” going to kill the victim and advised the mother to tell the victim not

to go to work because “we’re” going to kill her and accused the victim of being a “narc.”

This concerned and frightened the mother, who thought that the victim was in danger,

and she immediately called the victim at the Moreno Valley insurance office to make sure

the victim was alright. She testified that she told the victim that she had just gotten a


          7
        On this occasion, they spoke long enough for her to discover that his family
came from the same place in Mexico as her family. She testified that she was “getting to
know him on a personal level . . . .”



                                             13
phone call threatening the victim’s life. After speaking with her own father, the victim

and the victim’s female coworker, the mother concluded that defendant had been the

caller. The detective testified that the mother had reported the call to the detective that

day. The victim testified that same day, she went to the police department and reported

this call.

        The prosecutor argued to the jury that the criminal threats charge in count 1 was

the October 9, 2010 threat to kill the victim, the charge in count 2 was the November 12

threat to kill the victim, the charge in count 3 was a threat on November 19, 2010 to kill

the victim and count 4 was the December 6, 2010 call to the victim’s mother, during

which defendant threatened to kill the victim. While the prosecutor misspoke as to count

3, in that it involved a threat communicated to the victim, during which the mother was

threatened, but the victim was not, defense counsel did not object.

        Defendant here concedes that there was sufficient evidence that the victim

experienced sustained fear for herself or a family member, as required by section 422, as

to the October 9 and November 11 calls, based on her testimony that those threats made

her fearful and her male coworker had to walk her to her car because of her fear.

However, defendant asserts, the evidence was insufficient to prove sustained fear as to

the November 19 call because there was no evidence that the victim was in sustained fear

for her mother or that she even communicated the threat to her mother. However, the

jury could reasonably have interpreted the victim’s testimony that she was sick to her

stomach, confused, worried and scared as a result of all of defendant’s calls, including



                                             14
the one on November 19, during which he threatened her mother. Moreover, the victim

testified that it was not until her mother had been threatened that she filed a report at the

police department.8 This threat was only eight days after the November 11 threat to the

victim’s life and logic dictates that if, as defendant concedes, the victim was in sustained

fear for her own safety due to the November 11 threat, she would be in sustained fear for

her mother on November 19. She lived with her mother at the time. It was apparent from

their testimony that the two were close.9 Additionally, the victim’s female coworker’s

testified that the victim would cry or be terrified or not know, depending on what was

said during the call, in relation to all of the calls defendant made, not just to those that

involved threats to the victim, herself. The victim’s male coworker’s testimony that the

victim turned pale and cried hysterically following calls related to all the calls, and not

just those during which she, herself, was threatened. Finally, the victim reported all the

recorded calls to the police detective and gave her the recording, which included this call.

Therefore, there was sufficient evidence that the victim was placed in sustained fear for

her mother due to the November 19 call.

       8  The victim was incorrect. She did not report to the police until after defendant
had called her mother and threatened the victim. However, the victim’s testimony in this
regard, albeit incorrect, indicated her reaction to the threat directed at her mother.

       9  In addition to cohabitation, it was the victim’s mother who drove the victim to
defendant’s insurance agency to pick up her personal belongings after defendant fired the
victim in July 2009. During the five months the victim worked for defendant, the mother
visited the victim at the agency and joined her daughter and her daughter’s fellow
employees for lunch. The mother had been to the agency a sufficient number of times to
learn the names of all of the victim’s coworkers.



                                              15
       As to defendant’s assertion that there was insufficient evidence of sustained fear

due to the December 6 call to the victim’s mother, defendant ignores the mother’s

testimony that the call frightened her and that she “th[ought] that [the victim] was in

danger.” Instead, he focuses on the mother’s initial testimony that before she figured out

it was defendant calling, she called the victim at her office because she wanted to know if

the victim was okay or if this was a “terrible prank.” However, this does not detract from

the mother’s other testimony that she was frightened, she feared the victim was in danger,

she immediately called the victim out of concern and she reported the call to the police

and so did the victim. Defendant knew where the mother worked.

       Defendant also contends that the trial court had a sua sponte duty to instruct the

jury that it could convict him of the lesser included offense of attempting to make a

criminal threat based on the November 19th and December 6th calls because there is

substantial evidence that the victim was not in sustained fear due to the November 19th

call and her mother was not in sustained fear due to the December 6th call. (See People

v. Verdugo (2010) 50 Cal.4th 263, 293.) For reasons already expressed, we disagree. For

the same reasons, even if we concluded that the trial court erred in failing to give

instructions on attempted threats, there is no reasonable probability that the jury would

have convicted him of this lesser offense. (See Breverman, supra, 19 Cal.4th at pp. 142,

176, 177.)

                                           DISPOSITION




                                             16
       The convictions for counts 8 and 9 are reversed, as are their concurrent six month

sentences, and the trial court is directed to omit reference to them in the minutes of the

sentencing hearing, if the prosecutor elects not to retry defendant for them. In all other

respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                       RAMIREZ
                                                                                         P. J.


We concur:

RICHLI
                           J.

MILLER
                           J.




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