Opinion
G052835
12-20-2017
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 and Xavier Becerra, Attorneys 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Reversed and remanded. John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys 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.
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 working 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. At trial, 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." (Italics added.)
While there is no doubt there is substantial evidence to support a conviction for having made a criminal threat, having reconsidered the matter we must nevertheless reverse the conviction. There is a duty on the part of trial courts to instruct the jury "on lesser included offenses" when the evidence supports such an instruction. (People v. Breverman (1998) 19 Cal.4th 142, 148.) Here, the trial judge did not instruct the jury on the possibility of attempted criminal threat. He should have. (See People v. Toledo (2001) 26 Cal.4th 221 (Toledo).)
As Toledo shows, there is indeed such a crime as attempted criminal threat. (See Toledo, supra, 26 Cal.4th at p. 230 ["it would appear to follow as a matter of course that there is a crime of attempted criminal threat in this state, defined through the interplay of section 422 and the statutory provisions relating to attempts.")
We are unable to distinguish Toledo from the case before us. There, a husband got into an argument with a wife, told his wife he was going to kill her, and soon thereafter - "holding scissors over his shoulder" - approached his wife and "plunged the scissors toward her neck," "inches from" her skin, then said, "You're not worth going to jail for." (Toledo, supra, 26 Cal.4th at p. 225.) But while the wife told the investigating officer she was afraid the husband was going to kill her - parallel to what Jacobo told the investigating officer here - at trial the wife "denied that she had entertained any fear of defendant on the evening in question" - also parallel to what Jacobo said at trial here. (Ibid.)
The difference in the cases is that in Toledo the trial judge gave a lesser included instruction (about attempted criminal threat), so on appeal the defendant sought reversal on the theory there was no such crime. (Toledo, supra, 26 Cal.4th at p. 226.) But the Supreme Court held there was such a crime, in process setting out three scenarios where an attempt to make a criminal threat could be made: (1) a written threat intercepted prior to delivery, (2) an oral threat made to a person who doesn't understand it, and (3) a threat that is indeed "received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear." (Id. at p. 231.)
In the present case, we have the third scenario presented by Jacobo's in-court testimony. He received Weintraut's threat but was not actually put in sustained fear. He told the jury: "I was not afraid."
In the face of Toledo the Attorney General posits two arguments to uphold Weintraut's conviction for completed criminal threat. Neither is persuasive.
The first is the flip side of an argument we often receive from defendants: That the state of the evidence was so compelling the jury just had to believe Jacobo's on-the-scene story to the investigating officer and concomitantly had to discount Jacobo's in-trial testimony. The Attorney General's legal theory here is that "the court is under no duty to give a requested instruction when there is no substantial evidence in support." (People v. Hendricks (1988) 44 Cal.3d 635, 643 (Hendricks).) The ironic core of this argument is the idea that Weintraut put Jacobo in so much fear during the encounter at the repair shop that of course Jacobo was going to minimize his remembered fear at the time of trial so there was no substantial evidence requiring an attempt instruction.
But this argument is unpersuasive for the very reason it fails when made by defendants: It is argument going to the weight of the respective evidence. It is thus properly addressed to a jury, not an appellate court. Indeed, such arguments are often dismissed on appeal as "jury arguments."
We are fully aware of the fact it is not uncommon for 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.) Even so, the jury was entitled to believe Jacobo's latter-day version of events that did not show sustained fear - only an attempt to put him in sustained fear. It was the prosecutor's job to convince the jury, in the face of the possibility the jury might believe the in-trial version of his fear and only return an attempt conviction, that the in-trial version should have been discounted and the jury had to be given an instruction to allow them to reject the prosecutor's argument.
The second argument is that the error was harmless, but this is only a variation on the first argument to the effect the jury could not reasonably have found only attempted criminal threat. Again, the answer is that the jury was entitled to believe Jacobo's minimization of his fear at trial and it was the prosecutor's job to convince them to believe the repair shop version as against a possible attempt finding.
Hendricks, supra, 44 Cal.3d 635, relied on by the Attorney General for the proposition an attempt instruction was not necessary, is inapposite to this case. In Hendricks it was the defendant's words - a self-serving statement to the effect he didn't intend a result - that did not merit an attempt instruction because of hard "physical evidence" belying those words. (See id. at p. 643.) Here, however, it is the victim's words about his own subjective fear, under oath at trial, that raise the possibility of an attempt. Unlike Hendricks, Toledo centered on a victim's fear, as does the case before us.
Here is the key passage from Hendricks: "As the physical evidence established, defendant shot Parmer six times at point-blank range, the last three times as he lay on the floor unconscious; he shot Haynes five times at point-blank range, the last three times as he lay prone on the bed. In light of this evidence, defendant's self-serving tape-recorded statements denying an intent to kill cannot be deemed substantial in character." (Hendricks, supra, 44 Cal.3d at p. 643.) --------
We reverse the judgment of conviction and remand the case for further proceedings in line with our decision today. If there is a retrial, everybody will know that this time the possibility of a conviction for attempted criminal should be told to the jury.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. THOMPSON, J.