Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF131278, Janice M. McIntyre, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
In a previous trial, defendant Douglas Mark Thurber was found guilty of making a criminal threat (Pen. Code, § 422) against alleged victim Michelle Velasquez but not guilty of making a criminal threat against alleged victim Charla Allen. One prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)) and one “strike” prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) were found to be true.
On appeal, we reversed the conviction for making a criminal threat against Velasquez. We held that the trial court erred by admitting a tape of Velasquez’s 911 call over defendant’s objection that the tape had not been properly authenticated. The only evidence that the tape was authentic consisted of Allen’s testimony that, when she listened to the tape, she recognized Velasquez’s voice. We explained that this did not meet the prosecution’s “minimal” burden of showing that the tape accurately reflected what Velasquez actually said — i.e., that the tape was not altered or incomplete. For guidance on remand, however, we further held that the admission of the 911 tape did not violate the confrontation clause. (People v. Thurber (Dec. 23, 2009, E046342) [nonpub. opn.] (Thurber I).)
On remand, the prosecution provided additional evidence to authenticate the 911 tape. Once again, the trial court admitted the tape; once again, the jury found defendant guilty of making a criminal threat against Velasquez; and once again, it found the prior serious felony conviction enhancement and the strike prior to be true. Defendant was sentenced to a total of nine years in prison.
In this appeal, defendant contends:
1. The tape of the 911 call still was not properly authenticated.
2. The admission of the tape of the 911 call violated the confrontation clause.
3. There was insufficient evidence to support defendant’s conviction for making a criminal threat.
We find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
Charla Allen lived with her boyfriend of 16 years, who was the father of her children. They had a roommate, Michelle Velasquez. Velasquez did not testify at trial; the trial court ruled that she was unavailable.
Allen testified that she and defendant were basically just friends; their relationship revolved around using methamphetamine together. However, defendant had performed oral sex on her once or twice.
Allen had a Mercedes. She considered herself to be the owner, because defendant’s brother had agreed to sell it to her. “[B]ehind [her] back, ” however, defendant had paid his brother for it and had put it in his own name.
On June 9, 2006, around 11:00 a.m., defendant showed up at Allen’s house. He was angry; when she did not open the door right away, he pounded on the windows. He demanded the keys to the Mercedes so he could use it to do errands. Allen refused. This made defendant even angrier. Allen gave in, but she told defendant that she had to get her stuff out of the car. Velasquez followed her out to the car, to help her.
As Velasquez neared the car, defendant threatened her, saying, “[D]on’t come near my car, you fat bitch, or I’ll take you out.” Defendant also said, “I’ll kill you [i.e., Velasquez] and then kill her [i.e., Allen]....” Allen was not sure which threat was made first.
Velasquez ran away and hid in a pickup truck parked on the other side of the house. She called 911. In the call, she said that defendant was threatening to kill her and her friend. She reported that defendant had said that “if I went any close[r] to [the] car or him that... he was gonna take me out. And then he started [c]hoking me....” She was manifestly frightened and distraught.
When a police officer responded, he found defendant inside the house, yelling angrily at Allen. After detaining defendant, he interviewed Allen and Velasquez, separately. They were both “visibly shaken, ” crying and afraid. Allen told the officer that defendant had said, “You fucking, fat bitch, I’ll kill you [Velasquez] and then I’ll kill her [Allen].” Velasquez told the officer that defendant had said, “Don’t go near my car or I’ll take you out.” He had also told her to get out of the house, or he would kill her.
The jury heard tape recordings of jailhouse phone calls between defendant and Allen. In them, Allen said that defendant did not deserve to be incarcerated. She assured him that she had not been afraid of him. She told him that she loved him and wanted to have sex with him again. He urged her to recant her previous statements. Allen testified that she had not meant what she said in the calls; she just told defendant “what he wanted to hear, ” because she was afraid of what he would do if he got out.
In fact, Allen testified, when defendant made his threats, she was afraid of him. She claimed that she was still afraid of him at the time of trial. However, she admitted testifying at the preliminary hearing that she did not believe that he would carry out his threats.
The jury also heard a tape recording of a jailhouse phone call between defendant and Velasquez. In it, Velasquez told defendant that it “suck[ed]” that he was in jail.
II
AUTHENTICATION OF THE 911 TAPE
Defendant contends that the trial court erred by admitting the contents of the tape of Velasquez’s 911 call, because the tape was not properly authenticated.
A. Additional Factual and Procedural Background.
The prosecution introduced the following evidence to authenticate the tape.
Brenda Brady was the custodian of records of the sheriff’s department dispatch center. She testified that all 911 calls are recorded, in their entirety, by computer: “[E]verything is recorded from the moment the line is picked up.” The computer also generates an incident report in connection with each call. Brady testified that the tape was “totally accurate....”
Actually, the prosecutor asked, “[I]s this an accurate rendition of the record that took place on that day?” Brady answered, “Yes. It’s a totally accurate depiction that happens on a daily basis with the dispatch center.” Unfortunately, the prosecutor did not specify what he meant by “this.” From the context, he could have meant either the tape or the incident report. Defendant concedes, however, that this testimony referred to the tape.
According to the incident report, the operator who took Velasquez’s 911 call was Carol DePaul. DePaul testified that, due to the passage of time, she had almost no recollection of Velasquez’s call. However, she had listened to the tape and recognized her own voice. DePaul also testified:
“[THE COURT:] [I]s that tape that you listened to, People’s 1, an accurate representation of the call that was made?
“THE WITNESS: I believe it to be, yes.”
Defense counsel objected to the tape on several grounds, including lack of foundation and violation of the confrontation clause. The trial court overruled these objections.
DePaul went on to testify:
“Q. Ma’am, you only say that it’s an accurate 911 call because it just sounds like a call, right, that you would participate in?
“A. No. I say it’s an accurate 911 call because I was the 911 dispatcher at the time. I did take that call and, therefore, that makes it accurate. You have a tape recording of the call.”
B. Analysis.
As we stated in our previous opinion, “‘“[t]o be admissible in evidence, an audio or video recording must be authenticated. [Citations.] A... recording is authenticated by testimony or other evidence ‘that it accurately depicts what it purports to show.’ [Citation.]” [Citation.]’ [Citations.] We review the trial court’s ruling for abuse of discretion. [Citation.]” (Thurber I, supra.)
Here, unlike in the first trial, both Brady and DePaul specifically testified that the tape was accurate. Defendant argues that Brady “did not explain how she knew that.” Actually, she did — she testified that all 911 calls are recorded, in their entirety, by computer. Defendant also complains that she did not specifically testify that the tape could not have been altered or incomplete. However, it is a reasonable inference from her testimony that all computerized tapes of all 911 calls are accurate. If there were any doubt, defense counsel could have cross-examined her on this point.
Defendant also argues that DePaul could not authenticate the tape because she did not specifically remember the call. She did testify, however, that if she took a call, and if a tape recording of that call exists, then the tape is accurate. As with Brady’s testimony, it is a reasonable inference from DePaul’s testimony that all tapes of all 911 calls are accurate.
We therefore conclude that the trial court did not err by overruling defendant’s authentication objection.
III
CONFRONTATION CLAUSE ISSUES REGARDING THE 911 TAPE
Defendant contends that the trial court erred by overruling his confrontation clause objection to the 911 tape.
Under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] and Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266, 165 L.Ed.2d 224], the confrontation clause bars the admission of “testimonial” hearsay statements by a declarant who did not testify at trial, unless (1) the declarant was unavailable to testify and (2) the defendant had had a prior opportunity to cross-examine the declarant.
As we held in our previous opinion — so that it is now the law of the case — Velasquez’s statements in the 911 call were not testimonial within the meaning of Crawford and Davis. (ThurberI, supra.) Defendant does not argue that there is any applicable exception to the law-of-the-case doctrine. For example, he does not claim that there has been any change in the controlling law (see People v. Whitt (1990) 51 Cal.3d 620, 638-639); to the contrary, all of the authorities on which he relies predate our previous opinion.
In a related contention, defendant also argues that the 911 tape was inadmissible under Crawford and Davis because the prosecution failed to prove that Velasquez was unavailable. Once again, however, as we also held in our previous opinion, because the 911 call was not testimonial, the confrontation clause did not require the prosecution to show that Velasquez was unavailable. (Thurber I, supra.)
Defendant explains that he is “mak[ing] the identical arguments to preserve the federal constitutional issues.” This is his right (and arguably his appellate counsel’s duty). We, however, having already rejected these arguments once, are compelled to reject them again.
IV
THE SUFFICIENCY OF THE EVIDENCE OF THE CRIME
Defendant contends that there was insufficient evidence to support his conviction for making a criminal threat to Velasquez.
“‘In reviewing the sufficiency of the evidence, we must determine “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.” [Citation.]’ [Citation.] ‘“[O]ur role on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, 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 reversal of the judgment. [Citation.]’ [Citation.]” (In re V.V. (2011) 51 Cal.4th 1020, 1026.)
The elements of the crime of making a criminal threat are “‘(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... [wa]s to be taken as a threat, even if there [wa]s 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.]” (In re George T. (2004) 33 Cal.4th 620, 630, fn. omitted.)
There was evidence that defendant made as many as three threats to Velasquez: (1) if she did not get out of the house, he would kill her; (2) if she came near his car, he would “take [her] out”; and (3) “I’ll kill you [Velasquez] and then kill her [Allen].” The prosecutor, however, elected only the latter as the basis for the charge. He told the jury that the other threats were not criminal (presumably because they were conditional) and that it should “disregard” them.
First, defendant argues that there is insufficient evidence that Velasquez even heard the particular threat at issue. He points out that she only told the police about the other, conditional threats. From the very fact that defendant made the threat, however, it is inferable that he intended Velasquez to hear it, and thus that he made it directly to her. Also, Allen testified that he made it “when I was getting out of my car and I asked [Velasquez] to help me.” She added that when defendant made this threat, “he was looking at [Velasquez] first and directed it at her.” Moreover, in the threat, he addressed Velasquez directly, as “you, ” while referring to Allen as “her.” Immediately after defendant made his threats, Velasquez ran away. Finally, Velasquez specifically told the 911 operator that defendant was threatening to kill both her and her friend.
Defendant speculates that Velasquez may have heard only part of a conditional threat and thus may not have realized that it was conditional. In the conditional threats, however, defendant threatened to kill only Velasquez; he did not also threaten to kill Allen. Nevertheless, in the 911 call, Velasquez said defendant was threatening to kill both of them. Defendant also speculates that Velasquez may have heard about the unconditional threat from Allen. Even assuming that these are reasonable inferences, we must draw reasonable contrary inferences if they favor the judgment. (People v. Manriquez (2005) 37 Cal.4th 547, 576.)
Second, defendant argues that there was insufficient evidence that he intended his statement to be taken as a threat. However, he was already extremely angry. When Allen did not open the door immediately, he went around the house pounding on the windows. He made more than one threat to kill Velasquez. While the other threats were conditional, this tended to show that he was contemplating the commission of an actual violent act; he was not just speaking figuratively. Velasquez, who was present and able to consider all of the circumstances, evidently viewed it as a serious threat. Finally, his apparent reason for threatening her was that he did not want her near “his” car, and he wanted her to leave. His threats would achieve these goals best if she believed them.
Defendant points to his conduct after making the threat — supposedly he “was not concerned about” Velasquez, as he was back in the house, yelling at Allen, when the police arrived. In the 911 call, however, Velasquez said that he did, in fact, choke her. Also, she ran away right after the threats were made; she hid in a truck on the other side of the house. It is reasonably inferable that defendant meant to harm her, but she prevented him from doing so by running away. In any event, an actual intent to harm is not required; all that is necessary is the specific intent that one’s statement be taken as a threat. Velasquez showed that she did take the statement as a threat, by running away. Once she did so, defendant no longer had any reason to follow through on his threat.
In sum, then, there was substantial evidence that defendant intended his threat to be taken seriously; that Velasquez heard it; and that Velasquez did, in fact, take it seriously.
V
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., KING J.