Filed 7/17/17 P. v. Weintraut CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

DEAN PATRICK WEINTRAUT,

Defendant and Appellant.


G052835

(Super. Ct. No. 15CF0431)

O P I N I O N

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.
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.
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.
The judgment of conviction is affirmed.




BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.