Filed 12/13/19 P. v. Buege CA3

NOT TO BE PUBLISHED

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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

KYLE ALAN BUEGE,

Defendant and Appellant.

C087846

(Super. Ct. No. 17FE022387)

Defendant Kyle Alan Buege chased the victim into her apartment building, and then pounded on the glass door of the building’s entrance while yelling at the victim that he was going to rape her and steal all her money. A jury found defendant guilty of making criminal threats. On appeal, defendant contends there was insufficient evidence to support the conviction. We affirm.

FACTS AND PROCEEDINGS

After returning from an early morning workout, the victim parked her car on the street near her apartment building. When she got out of her car, she observed a man hollering and waving his arms, half a block away. The victim decided to walk on the side of the street opposite the man, defendant. But defendant walked towards the victim, shouted that she had a “microphone brain,” said something about “people on cell phones,” and yelled at the victim, “what do I have to do to get you to look at me?” Defendant’s eyes were very wide open.

The victim ran to her apartment building, and defendant ran after her. The victim used her electronic scanner to open the building’s front door, a glass door with wrought iron pulls on its front. As she pulled the door shut, the victim smelled a bad odor emanating from defendant.

Just as the door closed and automatically locked, defendant pulled at the handle, pounded on the door, and, while looking at the victim, yelled that he was “going to fuck” her “and steal all” her money.

Defendant continued forcefully pounding on the door and repeated his earlier statements while grabbing his genitals through his pants. The victim, stunned, called 911 and watched defendant from the other side of the door.

The victim was scared and felt certain that, had defendant gained entry, he would have attacked her. After the victim ended the 911 call, she threw up in her apartment, as she contemplated just how narrow her escape was.

A jury found defendant guilty of threating to commit a crime that would result in death or great bodily injury to another person (count two). (Pen. Code, § 422.)

DISCUSSION

On appeal, defendant challenges the sufficiency of the evidence as to two of five necessary elements. He argues that, given the context of his arm waving and nonsensical ranting just before his statements to the victim, there was insufficient evidence he intended to threaten the victim, and insufficient evidence there was a serious and immediate prospect he would carry out the threat.

“In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat–which may be ‘made verbally, in writing, or by means of an electronic communication device’–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.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

Where the sufficiency of evidence is challenged on appeal, we review the record in the light most favorable to the judgment, to determine whether it discloses substantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence is evidence that is “reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Ibid.) From the evidence, we draw all inferences supporting the jury’s verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.)

Here, substantial evidence supports the verdict as to elements two and three.

Regarding element two, the specific intent element, evidence of a defendant’s state of mind is almost inevitably circumstantial. (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) The determination whether a defendant intended his or her words to be taken as a threat can be based on all of the surrounding circumstances and not just the words used. (People v. Butler (2000) 85 Cal.App.4th 745, 754.) In an analogous case, the court found evidence of the intent element of section 422 to be “overwhelming and uncontradicted” when a defendant shouted, “I’m going to kill you, you son of a bitch” while trying to batter down the victim’s front door and smash his front window. (People v. Teal (1998) 61 Cal.App.4th 277, 281.)

Here, there is sufficient evidence, in both defendant’s statements and the surrounding circumstances, that defendant made the threat with the specific intent that the statement be taken as a threat. Defendant, a stranger to the victim, chased the victim to her apartment building door. He then pulled at the handle of the door and pounded on the door while yelling that he was “going to fuck” the victim and “and steal all” her money. The jury was informed that, just prior to this, defendant was acting strangely and made an irrational statement about the victim’s “microphone brain,” but could easily conclude by the conduct of chasing the victim, pounding on her door, and yelling at her, defendant intended his statements be taken as a threat.

As for element three, the requirement that a threat be “so [1] unequivocal, [2] unconditional, [3] immediate, and [4] specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” the Supreme Court has explained these “ ‘four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.’ [Citation.]” (In re George T. (2004) 33 Cal.4th 620, 635.) In People v. Fierro (2010) 180 Cal.App.4th 1342, the court found substantial evidence of this element when a defendant said, “I will kill you . . . right now” while standing about seven feet away from the victim and lifting his shirt to display what appeared to be a weapon tucked into his waistband. (Id. at pp. 1346, 1349.) The court reasoned the defendant’s proximity to the victim and his threatening gesture added weight to his words for purposes of this element. (Id. at p. 1348.)

Here, there is sufficient evidence defendant’s statements and the surrounding circumstances conveyed to the victim a serious and immediate prospect defendant would do what he threatened. The victim was so close to defendant she could smell him. Immediately after the victim shut her building’s door, defendant pounded on the door, and grabbed his genitals while threatening to “fuck” the victim. The jury reasonably could have found defendant’s conduct of pounding on the door and grabbing his genitals while making his threat, when considered along with defendant’s proximity to the victim, conveyed to the victim a gravity of purpose and an immediate prospect of execution of the threat.

Accordingly, we conclude substantial evidence supports the jury’s verdict.

DISPOSITION

The judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

BUTZ, Acting P. J.

/s/

MAURO, J.