P. v. Hernandez

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Filed 9/10/18 P. v. Hernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ROGER ADRIAN HERNANDEZ,
Defendant and Appellant.
E067112
(Super.Ct.No. RIF1506525)
OPINION
APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,
Judge. Affirmed.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Roger Adrian Hernandez contacted his live-in girlfriend
Jennifer Clark via telephone advising her that he had discovered God’s plan for their

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family. He told her he was going to sacrifice himself and his daughter I.H. (Daughter) to
show God how true defendant was to him. Defendant was going to give Clark a gun so
that she could shoot him and then Daughter. Defendant was arrested when he arrived at
Daughter’s school to pick her up.
Defendant was convicted of one count of making terrorist threats (Pen. Code,
§ 422).1 It was further found true that defendant had suffered one prior serious and
violent felony offense within the meaning of sections 667, subdivisions (a), (c) through
(e)(1) and 1170.12, subdivision (c)(1).2 Defendant was sentenced to six years four
months to be served in state prison.
Defendant makes one claim on appeal that insufficient evidence was presented to
support his conviction of making terrorist threats. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. CURRENT INCIDENT
In October 2015 Clark, three of her children, defendant, and Daughter (who was
eight years old) all lived together on Eileen Street in Riverside. Clark explained that she
and defendant had been dating for the prior two and one-half years but had experienced
problems. Defendant would live with her and then would get drunk and do something
that caused her to break up with him. They would take a break and then he would come
to back to her.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The trial court struck the prior felony conviction within the meaning of sections
667, subdivisions (c) through (e)(1) and 1170.12, subdivision (c)(1).

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On October 22, 2015, Clark was at work. Defendant called her several times but
she ignored the calls. After several calls, she became concerned there was an emergency
and finally answered. Defendant was very excited. He told her, “Babe, I get it now.” He
told her, “God gave me his eyes to see. You know I get it.” Defendant told Clark that
God wanted him to sacrifice himself and Daughter to show God how true he was to him.
He told her that her children were like his own kids and they were all going to heaven
together. This way they would not have to suffer on earth like he had suffered.
Defendant told Clark he was going to give her a gun and she was going to shoot
him and then Daughter. Clark then understood sacrifice, since he mentioned a gun, to be
a killing. Clark was afraid because she was worried he would hurt her children or
Daughter. Clark was concerned when defendant mentioned getting a gun because he had
told her before he could get a gun if he needed it.
Defendant got a call on another line from his sister. He told Clark that he wanted
to talk to his sister and tell her everything; defendant hung up. Seconds later, Clark got a
text message from defendant’s sister. Clark called Daughter’s school. Daughter was to
be released from school in 10 minutes and defendant was scheduled to pick her up from
school. Clark did not want Daughter to be alone with defendant because she did know
what he was going to do. The school advised her to call the police.
Clark called the police and headed to the school. The school kept Daughter
hidden in the front office. Defendant arrived at the school. Clark hid from defendant
until the police arrived.

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Warren Ufondu was a campus supervisor for the Riverside School District. He
was on duty at the school that Daughter attended on October 22. Ufondu was made
aware of defendant’s statements to Clark. Ufondu pulled Daughter from class and hid
her until Clark and the police arrived. When defendant arrived at the school, he came to
the office looking for Daughter. He said to Ufondu, “Hey, bro, you know, God sacrificed
his son and, you know, I’m thinking about sacrificing myself and—.” Defendant stopped
talking midsentence. Defendant appeared to Ufondu to be “spacey.”
Riverside Police Officer Christi Arnold was a school resource officer and
responded to Daughter’s school. When she arrived, she spoke with Clark. Clark was
frantic and immediately approached Arnold when she arrived. Officer Arnold spoke with
defendant. He had no weapons. He insisted he loved Daughter; Clark and Ufondu were
lying. He never threatened to harm himself or Daughter. Arnold helped Clark get a
restraining order.
B. DEFENDANT’S PRIOR VIOLENT ACTS
Clark was concerned about defendant’s behavior when he called her because she
was aware of defendant’s participation in violent activity in the past. Defendant told
Clark that while living in Chicago, about 10 years before, he had been in a gang.
Defendant told her he had killed and hurt people. Clark indicated that when defendant
got drunk, he became violent. In November 2013 defendant had gotten drunk and said
mean things to her. He punched the wall and made a huge hole in the wall. He punched
a hole so deep it cut off the power.

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A few weeks prior to October 22, defendant had gotten drunk and taken some
medication. Clark was mad at him because he was too drunk to drive the children to their
activities. They got into an argument. He pushed some groceries off the table hitting one
of Clark’s daughters with the food. Clark gathered all of the children and left the house.
She went next door and called the police.
Clark calmed down and called off the police. She went to talk to defendant. She
told him she believed that he was threatening her. He responded, “I don’t make threats.
I’m not like your ex. If I pull a gun out on you, I will blow your f-ing brains out.” Clark
was scared.
Clark told defendant she did not want to be with him anymore and that he needed
to leave. Defendant started attending AA meetings at a church and told Clark he wanted
to work on their relationship. Defendant began talking about God. He became calmer
and peaceful. Defendant told her that he wanted to get married.
Defendant then began to act different. He would not stop talking day and night.
He would talk to everyone about their personal business. Defendant told her that God
was sending him messages. When Clark confronted defendant, advising him that God
speaks through prayer and the bible, defendant got angry insisting that God
communicated with him in a different way.
Defendant had never used a gun against Clark. Defendant told Clark that he knew
a lot of people in Riverside and that if he needed a gun he could obtain one. She had
never seen him with a gun.

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C. DEFENSE
Defendant testified that Daughter meant everything to him. He had tattoos on his
neck that said “Daddy’s Girl” and “[Daughter].” He would never hurt her. He admitted
in 2003 he had been convicted of domestic violence against another woman. On October
22, defendant was excited to talk to Clark that he was finally going to give himself to
God. He wanted to surround his entire life with God. Defendant wanted the entire
family to surround themselves with God.
Defendant indicated Clark exaggerated that he had threatened to shoot her in early
October. He came home after drinking and Clark accused him of cheating on her.
Daughter started crying at some point. Defendant and Clark got into an argument but he
never threatened to shoot her. He admitted he punched the wall during another argument.
Defendant insisted his only statement to Clark over the phone on October 22 was
that he wanted to sacrifice himself and Daughter to God. His use of the word sacrifice
did not mean to kill, but to devote their lives to God. He did not say he was going to get
a gun; Clark was lying. He did not own a gun and did not have access to one. He never
told Clark he could get a gun from friends. His life had changed once he went to the AA
meeting. Defendant insisted that Clark was lying every time she said he talked about a
gun.
DISCUSSION
Defendant contends the evidence was insufficient to support his conviction of
making terrorist threats because his statement, that he would give Clark a gun to kill him
and Daughter, was not a threat to commit a crime resulting in great bodily injury and

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death. Clark could have instead walked away with the gun, not shooting either defendant
or Daughter. Further, the circumstantial evidence of Clark’s history with defendant did
not support the conclusion that defendant intended to threaten Daughter. The
circumstances did not involve defendant drinking or that he was trying to protect
Daughter, which were the triggers for his prior violence.
“ ‘A substantial evidence inquiry examines the record in the light most favorable
to the judgment and upholds it if the record contains reasonable, credible evidence of
solid value upon which a reasonable trier of fact could have relied in reaching the
conclusion in question. Once such evidence is found, the substantial evidence test is
satisfied. [Citation.] Even when there is a significant amount of countervailing evidence,
the testimony of a single witness that satisfies the standard is sufficient to uphold the
finding.’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 711.)
The elements of a criminal threat under section 422 are as follows: “The
prosecution must prove ‘(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,” 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

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person’s fear was “reasonabl[e]” under the circumstances.’ ” (In re George T. (2004) 33
Cal.4th 620, 630; People v. Toledo (2001) 26 Cal.4th 221, 227-228; see also § 422.)
“ ‘[T]he determination whether a defendant intended his words to be taken as a
threat, and whether the words were sufficiently unequivocal, unconditional, immediate
and specific they conveyed to the victim an immediacy of purpose and immediate
prospect of execution of the threat can be based on all the surrounding circumstances and
not just on the words alone. The parties’ history can also be considered as one of the
relevant circumstances.’ ” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431; see also
People v. Mosley (2007) 155 Cal.App.4th 313, 324.)
“A threat is sufficiently specific where it threatens death or great bodily injury. A
threat is not insufficient simply because it does ‘not communicate a time or precise
manner of execution, section 422 does not require those details to be expressed.’ ”
(People v. Butler (2000) 85 Cal.App.4th 745, 752.) “[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.” (Id. at pp. 753-754.)
In People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340, superseded by statute on
other grounds as noted in People v. Franz (2001) 88 Cal.App.4th 1442, the defendant told
the victim that, “ ‘you fucked up my brother’s testimony. I’m going to talk to some guys
from Happy Town.’ ” (Mendoza, at p. 1340.) The appellate court agreed with the
defendant that this statement “did not articulate a threat to commit a specific crime
resulting in death or great bodily injury.” (Ibid.) The appellate court concluded,
however, that this was sufficient for a violation of section 422, finding, “although

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appellant’s words were ambiguous, did not mention a particular criminal act or give other
particulars, a rational juror could have found—based on all the surrounding
circumstances—appellant’s words were sufficiently unequivocal, unconditional,
immediate and specific to convey to [the victim] a gravity of purpose and immediate
prospect of death or serious bodily injury.” (Mendoza, at p. 1342.)
Here, defendant told Clark that God had told him to sacrifice both him and
Daughter to show how true he was to God. Defendant told Clark he was going to get a
gun, give it to Clark and she was to shoot both him and Daughter. He wanted the entire
family to go to heaven together. Defendant complains that such statement did not rise to
the level of a threat to commit a crime resulting in great bodily injury or death. He insists
that even if he gave Clark a gun, she could have walked away. This interpretation is not
reasonable based on the circumstances.
When defendant called Clark he was excited and wanted to express his newfound
devotion to God. He immediately told her he was going to sacrifice himself and
Daughter to God to show his devotion. He wanted Clark to shoot him and then Daughter.
The jury reasonably could conclude that defendant intended to commit great bodily injury
or death on Daughter. Although he expressed a way that the sacrifice could occur, it was
reasonable to conclude that defendant would find a way to sacrifice himself and Daughter
to God even if Clark did not shoot them. Moreover, defendant told Ufondu that God
sacrificed his own son and defendant was going to sacrifice himself, and then abruptly
stopped talking. The implication from the statement was that he was going to sacrifice
Daughter the same way God sacrificed Jesus, which meant having Daughter die. This

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was not an expression that he just wanted to be devoted to God. Based on the
surrounding circumstances, defendant’s statement qualified as a criminal threat.
Further, based on defendant’s prior history and his behavior leading up to October
22, there was substantial evidence that defendant’s statement was a threat to commit great
bodily injury or death upon Daughter. Defendant had a history of violence, including
telling Clark he had committed murder, he had punched a wall during an argument, and
had been involved in a domestic violence incident with another woman. Defendant also
told Clark during an argument that if he pulled a gun on her, he would blow her
“fucking” brains out.
Defendant contends these acts of violence were only committed when he was
drinking and he was not drinking on October 22. Although alcohol may have been
involved in the prior incidents, there was no evidence this was the sole contributor to his
violence. Defendant had threatened Clark that if he had a gun, he would use it.
Defendant had shown his inability to control himself by punching the wall and throwing
food off the table, hitting one of Clark’s children.
Further, defendant’s behavior in the weeks preceding his statements supported that
his statement he was going to sacrifice Daughter was a criminal threat. Defendant had
suddenly found God and insisted that God was speaking to him. He wanted the entire
family to be devoted to God. He was described as “spacey” on the day of the incident by
Ufondu. Defendant continuously talked day and night. He got angry when Clark
questioned him about God speaking to him. Based on his behavior, it was reasonable for

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the jury to conclude that his devotion was deepening and he intended to kill himself and
Daughter because of this devotion to God.
Based on the statements made by defendant and the surrounding circumstances
there was sufficient evidence of a violation of section 422.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.

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