Opinion
G052835
07-17-2017
THE PEOPLE, Plaintiff and Respondent, v. DEAN PATRICK WEINTRAUT, Defendant and Appellant.
John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall Einhorn and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF0431) OPINION Appeal from a judgment of the Superior Court of Orange County, John S. Adams, Judge. Affirmed. John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall Einhorn and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Dean Patrick Weintraut was convicted of one count of making a criminal threat (Pen. Code, § 422, sub. (a)), with the additional finding he used a dangerous or deadly weapon (a knife) at the time. He was also found guilty of simple misdemeanor assault based on the same incident. He was subsequently sentenced to three years of incarceration, two years (the mid term) for the criminal threat and one year for the weapon enhancement. The court suspended sentence for the misdemeanor.
All further statutory references are to the Penal Code.
Reading the sentencing hearing, it appears the trial judge was moved to confine the penalty on the criminal threat count to only the mid-term in light of the "heartfelt remarks" of Weintraut's former girlfriend, "innumerable" letters written on his behalf, and perhaps some evidence he had been recently rendered unable to work because of an injury in his work as a roofer, and was under the stress of resultant health problems. The trial judge overlooked the extremely bad impression Weintraut made during the trial by staring at both the judge and jury in a "mad dog" fashion. For his part, Weintraut pleaded that the mad dogging was because he had been having eye problems and was trying to focus.
At trial there was no conflict as to the basic scenario behind the criminal threat charge: On July 1, 2014, the victim, a man in the auto repair business named Jacobo, owed Weintraut $600. Weintraut had performed roofing work for Jacobo in exchange for Jacobo doing auto work for Weintraut. Weintraut skidded swiftly into the driveway of Jacobo's repair shop in his Corvette. He got out of the car carrying a knife, grabbed Jacobo by the collar, demanded the $600 ('"pay me my fucking money'"), and jabbed at Jacobo's midsection with the knife. He loudly threatened to kill Jacobo: "'I'm going to kill you. You know, I get crazy.'" When Weintraut let go of his shirt collar, Jacobo was able to use his cellphone to call the police and Weintraut left. But as he was going back to his car he pointed the blade of the knife at Jacobo and said "I'm going after your family."
That was the basic scenario. There were, however, two discrepancies in Jacobo's testimony at trial, one minor, one which is the centerpiece of this appeal. The minor discrepancy was whether the tip of the knife at the time of the jabbing was pointed toward the ground or at Jacobo's abdomen. Based on the way Jacobo demonstrated the jabbings with a pen, defense counsel asserted that the tip of the knife at the time was pointed downward. The prosecutor quickly cleared that up by establishing the tip was indeed pointed at Jacobo's midsection.
The bigger problem was the quantum of fear Jacobo experienced during the incident. Jacobo testified on direct examination the killing threat only made him "mad, upset, a bit afraid." Later, in cross-examination, Jacobo reiterated that point, saying, "I wasn't afraid. It was like mixed feelings. I was not afraid." Upon those statements Weintraut's appellate counsel has built the argument that there was insufficient evidence that Weintraut's threats had put Jacobo in "sustained fear" as is required for a conviction under section 422, subdivision (a).
We disagree. It is not uncommon for the victims of criminal threats to minimize, at trial, the fear they experienced at the time of the threat. (E.g., People v. Solis (2001) 90 Cal.App.4th 1002, 1016; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1342.) Jacobo conceded on the stand he told the police officer who investigated the incident at the time that he felt "very afraid." Indeed, the officer corroborated that state of "very afraid" fear, describing Jacobo as "jittery" when she arrived at the scene about five minutes after the call came in. The jury, of course, was entitled to believe Jacobo's account of his mental state to the investigating officer at the time of the threat as distinct from his revisionist minimization at the trial. (See generally People v. Foalima (2015) 239 Cal.App.4th 1376, 1391 [stressing that even a witness who suffers memory loss on the stand can be evaluated by the jury for demeanor and credibility].)
The case law provides no hard and fast requisite period of time for the duration of sustained fear, other than to reiterate the formula first articulated by Justice Kitching in People v. Allen (1995) 33 Cal.App.4th 1149 (Allen) that "sustained" must exceed "momentary, fleeting, or transitory." (Allen, supra, at p. 1156 [effectively defining the word "sustained" by its opposites].) That said, pulling a weapon on someone and telling them "I will kill you" is certainly enough for a jury finding of sustained fear, as illustrated in People v. Fierro (2010) 180 Cal.App.4th 1342 (Fierro). There, the victim encountered a stranger at a gas station who wanted him to move his car out of the way. Seven feet from the victim on the passenger side of the victim's car, the defendant lifted his shirt to display a weapon in his waistband. The defendant then said "'I should kill you. I will kill you,'" and indicated he would do so "'right now.'" The defendant also pointed to the victim's 14-year-old son and said he should kill him too. (Id. at pp. 1345-1346.) The court held the incident was sufficiently traumatic to the victim to readily satisfy the sustained fear element of section 422. (See id. at p. 1349.)
We note that the same elements of trauma present in Fierro are before us in this case: An articulated threat to kill the victim and do harm to the victim's family members, plus the display of a deadly weapon. Except here, the deadly weapon was closer and more obviously intended for the victim than the gun in the waistband displayed in Fierro. Weintraut was physically close enough to Jacobo to both grab his collar and make jabbing motions with a knife toward his abdomen. Indeed, Weintraut put a weapon within inches of Jacobo's life.
On top of that - something not present in Fierro - this case involves prior history, as shown by Weintraut's "You know I get crazy" statement. (Cf. Allen, supra, 33 Cal.App.4th at pp. 1151-1153.) A jury could thus reasonably conclude that, under such circumstances, the "very afraid" state of mind that Jacobo expressed to the officer was anything but fleeting or transitory. Moreover, Jacobo had even more reason to fear future violence than the victim in Fierro: We note, as could the jury, that Weintraut knew where Jacobo and his family lived, having done roofing work there. Under such facts, we can hardly say, as a matter of law, that Jacob's fearful mental state dissipated right after the police officer left the scene.
Indeed, the jury could well have concluded that Jacobo's fear lasted for a much more extended time than the incident itself - all the way to the trial in fact. In the margin we reproduce an excerpt from Jacobo's testimony to the effect that while Jacobo was bending over backwards to be nice to Weintraut and in fact showed considerable sympathy toward him, Jacobo was still apprehensive of the possibility of Weintraut attacking his business or family all the way to the time of trial.
"Q. Are you worried about repercussions of your testimony here today?
"A. Well, yeah.
"Q. And why?
"A. Well, many reasons. First of all, because of my business. Alsohow could I explain thisthe day that that happenedwhat happened was maybe a misunderstanding. I don't know what is up with Dean. Maybe he needs help. I'm not the one to judge him. The jury is here for that. I'm not sure what I said that happened. I feel that he is my friend and he made a mistake.
"Q. Are you worried that something negative will happen to you personally or your family as a result of your testimony here today?
"A. Right now yes. At first, no, but you never know." (Italics added.)
Before the trial, there was an incident by or in a stairwell in which Weintraut apparently saw Jacobo and called out, "Leave. Everything is going to be okay. You don't need to be here. Things might happen." When the incident was brought to his attention (pretrial), Judge Adams engaged in some impressive damage control, trying to ascertain which jurors might have overheard the incident and ultimately excusing one of them. The judge also took pains during the trial to emphasize to the jurors at the close of the first day of trial that they not allow "anything that [they] may have seen or heard when court was not in session" to affect their deliberations. That means the fear Jacobo exhibited on the stand about the dangers arising from his testimony must ultimately be charged to the fear Weintraut created back in July 2014, and not to any new fear that Weintrautseemingly his own worst enemy at trialmay have created in the stairwell.
That leaves only a corollary argument advanced by Weintraut, to the effect that the evidence of sustained fear was so weak that in any event the trial judge was required sua sponte to instruct the jury of the possibility of convicting Weintraut of attempted criminal threat. The argument fails because it does not take into account the nature of the sustained fear element in section 422. The way the statute is written, the crime of criminal threat is an either/or proposition: The threat to carry out the crime that will result in great bodily injury to the victim will either result in sustained fear or there will be no conviction at all. As the great legal philosopher Yoda said to Luke Skywalker: "Do. Or do not. There is no try." And while there might be tries in the case of other crimes, like murder or burglary, there is no try when it comes to criminal threats. A criminal threat is a species of assault, and, like garden variety assault, it either happens, or it doesn't. (See In re James M. (1973) 9 Cal.3d 517, 524 [no such crime as attempted assault in California].) The judge correctly did not give a lesser included attempt instruction in regard to section 422.
"Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison." (§ 422, subd. (a), italics added.) --------
The judgment of conviction is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. THOMPSON, J.