Filed 9/17/26 P. v. Diaz CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A170391
v.
DARIEN NATHANIEL DIAZ, (San Mateo County
Defendant and Appellant. Super. Ct. No. 22NF013402A)
Defendant, Darien Diaz, appeals from his conviction by a jury of felony
corporal injury to a relationship partner, with a prior conviction (Pen. Code,
§ 273.5, subd. (f)(1); count 1); felony criminal threats (id., § 422, subd. (a);
count 2); felony false imprisonment (id., § 236; count 3); felony aggravated
assault (id., § 245, subd. (a)(4); count 4); misdemeanor violation of a stay
away order (id., § 166, subd. (c)(1); counts 5–6); and misdemeanor resisting
arrest (id., § 148; count 7). He contends the trial court instructed the jury on
an improper rape theory of liability as a basis for the criminal threat charge.
Defendant asserts that a threat to rape, standing alone, is not a threat to
commit a crime involving great bodily injury and, therefore, he was
prejudiced by the trial court’s unanimity instruction, which stated the jury
could not convict unless all jurors agreed that defendant threatened to kill
the victim and/or threatened to rape the victim. As we will explain, the trial
court’s unanimity instruction given here was not erroneous because
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depending upon the circumstances under which it was made, a threat to rape
may constitute a criminal threat under Penal Code section 422. We find no
error and affirm.
BACKGROUND
I. Prior San Francisco Charges
Jane Doe began dating defendant in 2019. They often fought due to
defendant’s jealousy. On May 21, 2021, prior to the incident that resulted in
defendant’s conviction in this case, Doe and defendant went to a hotel in San
Francisco as part of a night out. Doe left the hotel room and called 911. She
reported to the responding officer that defendant raped her. She said he
penetrated her vagina seven to eight times. When she attempted to leave the
room, defendant grabbed her by the hair and pulled her to the ground. She
lost consciousness for a few minutes, and when she woke up, defendant was
on top of her, punching her face. The responding officer said Doe was crying
hysterically, hunched over at her waist and grabbing her vaginal area as she
yelled, “He raped me. He raped me.” When Doe told defendant she was
going to call the police, he said he would kill her and her son. In an audio
interview at a hospital three hours later, Doe told the officer that defendant
had threatened her in the past and threatened her during the sexual assault.
She said defendant choked her, threw her on the floor, and punched her.
The San Francisco District Attorney charged defendant with multiple
counts arising out of the May 2021 incident, including rape by force or
violence or by threat of bodily injury (Pen. Code, § 261, subd. (a)(2)); domestic
violence (id., § 273.5, subd. (a)); and assault with force likely to cause great
bodily injury (id., § 245, subd. (a)(4)). In November 2021, defendant pleaded
guilty to one count of domestic violence (id., § 273.5, subd. (a)). Defendant
was placed on three years’ probation and a no harassment order was issued.
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Doe and defendant resumed their relationship after defendant was released
from custody. Defendant appeared in court on January 28, 2022, to report on
his progress on probation. He learned from the judge and the district
attorney that additional allegations were being made against him. During a
recess in the proceedings, defendant left the courtroom and did not return.
II. Current Offenses
The charges in this case involve an incident that occurred in the early
morning hours of October 30, 2022. Defendant and Doe attended a
Halloween party in Pacifica. After a man at the party complimented Doe’s
appearance, she saw defendant become angry and start to drink a bottle of
liquor. Doe was nervous because drinking took defendant to a “dark place,”
which is what happened at the San Francisco hotel. Doe abruptly left the
party. She was thinking of hiding from defendant, but when she was close to
her car, she saw defendant behind her. Defendant told Doe to get in the car.
He entered into the passenger seat, and she entered into the driver’s seat.
He took the key from Doe and told her they were going to sleep in the car
because they were too drunk to drive. Doe told defendant she needed to go
back to the party to use the bathroom. He told her to shut up and go back to
sleep. He said she could not leave because she probably wanted “ ‘to get with
guys and that lesbian girl.’ ” Doe pretended to fall asleep.
After Doe saw defendant was asleep, she left the car and went back to
the party to use the bathroom. Doe borrowed a friend’s bikini and went into
the hot tub with some friends. She changed back into her clothing and
carried the wet bikini in a plastic bag back to the car. She thought defendant
would be angry that she joined her friends in the hot tub and that she
“ ‘might get it.’ ” She hoped defendant would still be asleep, and she tried to
hide the wet bikini in the car.
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When Doe returned to the car, defendant woke up and yelled at her and
called her a whore. He saw the wet bikini, and he became further enraged.
Defendant tried to grab Doe’s phone. She hit him on the forehead with the
phone. He grabbed her wig. As defendant struggled to get Doe’s phone, he
hit her ear. He retrieved Doe’s phone, and he looked through it while calling
her names such as “ ‘whore’ ” and “ ‘bitch.’ ” He put his hand around her neck
and told her, “ ‘If I can’t have you, no one will. You are not going to be with
nobody.’ ” Then he told her to change her clothes, and she went into the back
seat to change. As she was changing her clothes, defendant pulled off her
underwear. Then he got in the backseat and got on top of her. Doe was
crying hysterically and hoping someone would hear her. Defendant tried to
put her underwear in her face or her mouth. As they struggled, Doe
screamed for help.
A woman leaving the party heard Doe’s screams and called 911. The
911 caller did not know Doe or the defendant.
When the police arrived, defendant fled from the car. He was located
and arrested two hours later, several blocks from the scene. The responding
officer observed Doe crying hysterically and looking scared. Her voice was
raspy, and she was coughing. She had visible injuries on her face, neck, and
ear. Doe told the officer that defendant threatened to repeat what happened
at the hotel in San Francisco and then said, “ ‘You want me to rape you
again.’ ” She also said defendant grabbed her neck and asked, “ ‘You wanna
die, bitch? Uh, you wanna die?’ ” When he grabbed her neck, she could not
breathe for a minute. He also punched her in the face and ear. When
defendant punched Doe in the ear, she could not hear for a few minutes.
On November 2, 2022, a sexual assault response team (SART) nurse
performed a forensic medical exam on Doe. Doe reported to the nurse that
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defendant slapped her in the face, punched her ear, and strangled her. She
also reported that defendant shoved her underwear into her mouth and
caused her mouth to bleed. Doe said she could not breathe during the
strangulation and had blurry vision. When defendant released his grasp, Doe
coughed and gagged. She described pain in her neck, pain swallowing, a
persistent headache, and a raspy voice. Doe’s neck was tender to the touch at
the time of the exam. She had bruises on her thigh, right forearm, and ear,
and an abrasion on her back. Doe told the nurse that defendant previously
physically assaulted her, and she referred to a rape case in San Francisco.
At trial, Doe downplayed or denied some of her prior statements to the
police and the SART nurse. She said she was angry when she gave the prior
statements, she did not mean everything she said, and she exaggerated the
incident. She denied that defendant slapped or choked her, denied she was
afraid of defendant when the police arrived, and denied telling the police that
defendant threatened to repeat what happened at the hotel in San Francisco.
She testified that defendant did not threaten to rape her. Doe recalled
feeling relief when the police arrested defendant and saying, “ ‘You guys got
him. My life is no longer in danger.’ ” However, she denied being afraid.
III. Relevant Jury Instructions
The jury was instructed with CALCRIM No. 1300, Criminal Threat,
which states “the People must prove that: [¶] 1. The defendant willfully
threatened to unlawfully kill or unlawfully cause great bodily injury to Jane
Doe. [¶] 2. The defendant made the threat [orally. [¶] 3. The defendant
intended that [his/ ] statement be understood as a threat*[ and intended
that it be communicated to Jane Doe. [¶] 4. Under the circumstances, the
threat was so clear, immediate, unconditional, and specific that it
communicated to Jane Doe a serious intention and immediate prospect that
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the threat would be carried out; [¶] 5. The threat actually caused Jane Doe to
be in sustained fear for [ /her] own safety*[ [¶] AND [¶] 6. Jane Doe’s fear
was reasonable under the circumstances. [¶] . . . [¶] In deciding whether a
threat was sufficiently clear, immediate, unconditional, and specific, consider
the words themselves, as well as surrounding circumstances. [¶] Someone
who intends that a statement be understood as a threat does not have to
actually intend to carry out the threatened act*[ [¶] Great bodily injury
means significant or substantial physical injury. It is an injury that is
greater than minor or moderate harm. . . .” (Sic.)
The jury was also instructed on the unanimity requirement as follows:
“The People have presented evidence of more than one act to prove that
defendant committed the criminal threat in count 2. [¶] As to Count 2 you
must not find defendant guilty unless you all agree that the People have
proved that the defendant committed at least one type of threat in the vehicle
and you all agree on which type he committed. Specifically, you must all
agree separately on whether the defendant conveyed a type of threat to kill
the alleged victim, and/or whether he separately made a threat to rape the
alleged victim. [¶] You must not find the defendant guilty unless you all
agree that the People have proved that the defendant committed at least one
of these acts and you all agree on which act, or type of threat, he committed.”
DISCUSSION
Defendant argues that the unanimity instruction was erroneous
because it provided the jury with a “rape theory of liability” for the criminal
threat count. He asserts that the crime of rape may be committed without
causing great bodily injury and, therefore, a threat of rape, standing alone,
cannot constitute a violation of Penal Code section 422. Defendant claims the
jury was instructed on both a valid and an invalid theory of guilt, and that
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his conviction must be reversed because the error is not harmless beyond a
reasonable doubt.
I. Legal Principles
Penal Code section 422 makes it a crime to willfully threaten “to
commit a crime which will result in death or great bodily injury to another
person, with the specific intent that the statement . . . is to be taken as a
threat . . . .” The threat must be “on its face and under the circumstances in
which it is made . . . so unequivocal, unconditional, immediate, and specific as
to convey to the person threatened, [sic] a gravity of purpose and an
immediate prospect of execution of the threat” and must cause that person
“reasonably to be in sustained fear for his or her own safety or for his or her
immediate family’s safety . . . .” (Pen. Code, § 422.) There is no requirement
that a specific crime or Penal Code violation be threatened. (People v. Butler
(2000) 85 Cal.App.4th 745, 755–756.) “[P]unishable threats can be
nonspecific and ambiguous so long as they reasonably may be construed,
under the circumstances, as threatening death or great bodily injury.”
(Id. at p. 759.)
In determining whether a particular threat is a criminal threat, we
consider all the circumstances surrounding the threat, including the words
used, the way the communication is made, and the prior relationship of the
parties. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.)
We review a claim of instructional error de novo and consider a
challenged jury instruction in the context of the instructions and the record
as a whole to determine whether there is a reasonable likelihood the jury
impermissibly applied the instruction. (People v. Rivera (2019) 7 Cal.5th
306, 329.)
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II. Analysis
The People argue defendant forfeited his claim of error by failing to
object to the unanimity instruction. (People v. Franco (2009) 180 Cal.App.4th
713, 719 [failure to object forfeits challenge to jury instruction that was
correct in law and responsive to the evidence].) However, defendant contends
his claim is not subject to forfeiture because the unanimity instruction
provided the jury with an invalid legal theory. Claims based on an incorrect
statement of law are not subject to the forfeiture rule. (Ibid.) Therefore, we
will consider the merits of defendant’s claim.
Defendant claims that a threat to rape is not a threat “ ‘to commit a
crime which will result in great bodily injury’ ” within the meaning of Penal
Code section 422. He supports his argument with a citation to Penal Code
section 263, which states: “The essential guilt of rape consists in the outrage
to the person and the feelings of the victim of the rape. Any sexual
penetration, however slight, is sufficient to complete the crime.” He also cites
People v. Escobar (1992) 3 Cal.4th 740 for the position that the crime of rape,
standing alone, does not involve great bodily injury. However, Escobar is not
directly on point because it does not involve a criminal threat charge. (Id. at
p. 745.) The issue in Escobar was whether the victim of a brutal kidnapping
and rape suffered great bodily injury within the meaning of the enhancement
statute (former Pen. Code, § 12022.7), which imposed an additional prison
term of three years when a person inflicted great bodily injury during the
commission of a felony. (Escobar, at p. 743.) Escobar held that evidence of
the victim’s extensive bruises and abrasions, injury to her neck, and soreness
in her vaginal area that significantly impaired her ability to walk was
sufficient to support the jury’s finding of great bodily injury. (Id. at p. 750.)
Such injuries were not those “ ‘routinely associated with rape,’ but reflected a
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degree of brutality and violence substantially beyond that necessarily present
in the offense.” (Ibid.)
With limited analysis, defendant argues the trial court’s instructions
allowed the jury to convict defendant of criminal threats “on a rape theory,”
which is not a threat to commit a crime involving great bodily injury. We are
unpersuaded that the trial court erred.
Even the defendant admits the jury was correctly instructed with
CALCRIM No. 1300, which explained all required elements of the criminal
threat count, including that the jury must find beyond a reasonable doubt
that defendant “willfully threatened to unlawfully kill or unlawfully cause
great bodily injury to Jane Doe.” The unanimity instruction that followed
was not inconsistent with CALCRIM No. 1300; nor did it provide the jury
with any alternative theory of guilt. It simply stated that there was evidence
of “more than one act” to prove the criminal threat and that defendant could
not be found guilty unless all jurors agreed on the “type of threat” defendant
made. “Specifically, you all must agree separately on whether the defendant
conveyed a type of threat to kill the alleged victim, and/or whether he
separately made a threat to rape the alleged victim.”
Defendant’s argument focuses on the unanimity instruction in
isolation, without reference to the immediately preceding criminal threat
instruction specifying all elements of the offense including that the threat be
to “kill or unlawfully cause great bodily injury” and defining great bodily
injury. CALCRIM No. 1300 also instructed the jury to consider the
surrounding circumstances in determining whether the threat was so clear,
immediate, unconditional, and specific that it communicated to Doe a serious
intention and immediate prospect that the threat would be carried out, and
whether Doe’s fear was reasonable. (CALCRIM No. 1300.)
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The unanimity instruction was not erroneous. Contrary to defendant’s
argument, the unanimity instruction does not state that the defendant may
be found guilty based on a threat of rape alone. It only requires the jury to
agree on the type of threat or act the defendant committed as one element of
the criminal threat offense. CALCRIM No. 1300 instructed that the act of
simply making a threat is not sufficient to prove the criminal threat offense.
Even if the jury agreed that defendant threatened to rape Doe, based on the
instructions given, it then needed to determine all of the other elements of
the criminal threat offense, including that the threat was to cause great
bodily injury.
Case law examining the types of statements that may constitute a
criminal threat is instructive. Penal Code section 422 does not require that a
specific crime be threatened. Even ambiguous statements may be a basis for
a section 422 violation. (In re Ryan D., supra, 100 Cal.App.4th at p. 860
[“ ‘it is the circumstances under which the threat is made that give meaning
to the actual words used’ ”].) In People v. Mendoza (1997) 59 Cal.App.4th
1333, the court explained that ambiguous statements made to a testifying
witness in a case involving a gang member were sufficient under the
circumstances to support a conviction under Penal Code section 422.
(Mendoza, at pp. 1340–1342.) There, the defendant told the victim she had
“ ‘fucked up [his] brother’s testimony’ ” and that he was “ ‘going to talk to
some guys from [his gang].’ ” (Id. at p. 1340.) The court found the words
themselves did not articulate a threat to commit a specific crime resulting in
death or great bodily injury. (Ibid.) However, based on all of the surrounding
circumstances, the defendant’s words “were sufficiently unequivocal,
unconditional, immediate and specific to convey to [the victim] a gravity of
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purpose and immediate prospect of death or serious bodily injury.” (Id. at p.
1342.)
Similarly, in People v. Martinez (1997) 53 Cal.App.4th 1212, the court
found that defendant’s threats to “get” and “get back to” the victim may not
have been criminal threats “standing alone,” but the manner in which they
were made and the surrounding circumstances, including that defendant set
fire to the victim’s workplace the following day, supported the conviction.
(Id. at pp. 1220–1221.)
As explained in People v. Maciel (2003) 113 Cal.App.4th 679, the phrase
“ ‘crime which will result in great bodily injury’ means the crime, if
committed, would result in great bodily injury.” (Id. at p. 685.) It means
“objectively, i.e. to a reasonable person, likely to result in great bodily injury
based on all the surrounding circumstances.” (Ibid.) Based upon the above
authorities, it follows that depending upon the circumstances under which it
was made, a threat to rape may constitute a criminal threat under Penal
Code section 422.
Defendant’s argument suggests that we view the threat to rape in
isolation, devoid of the surrounding circumstances, and consider only the
statutory definition of rape. However, this is contrary to case law and the
CALCRIM No. 1300 instruction given here, which required the jury to
consider the surrounding circumstances in determining whether defendant’s
words constituted a criminal threat. The surrounding circumstances are that
the rape threat was made by referring to a prior instance of rape in which
defendant threw Doe to the ground and she lost consciousness. Defendant
said, “ ‘Do you want to repeat what happened in the [San Francisco hotel],
bitch? Do you want me to rape you again? You didn’t have enough of that?’ ”
Further, at the time defendant made the threat to rape Doe he was physically
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assaulting her in the backseat of a car, punching her in the ear, putting his
hand around her neck, and tearing off her underwear and trying to stuff it
into her mouth. Contrary to defendant’s argument, the evidence here does
not include a threat to rape, “standing alone.”1 Instead, the circumstances
here amply support a finding that defendant’s threat to rape Doe was a
threat to cause great bodily injury.
We find it is not reasonably likely that the jury impermissibly applied
the unanimity instruction to find defendant guilty of making a criminal
threat based on a threat of rape without great bodily injury. (People v.
Rivera, supra, 7 Cal.5th at p. 329.) Such a finding would require the jury to
ignore the enumerated elements of CALCRIM No. 1300 as well as its
definition of great bodily injury. The jury was instructed to consider the
instructions together. We presume it did so and that the jury understood and
correlated all of the instructions. (People v. Burton (2018) 29 Cal.App.5th
917, 925.)
1 Defendant also refers to certain statements made in the prosecutor’s
closing argument that were “in accord with” the unanimity instruction,
including that “great bodily injury, which would apply to the rape,” and that
“it’s either a threat to kill or a threat to rape someone, which literally would
result in great bodily injury.” He does not specifically argue the prosecutor’s
statements were improper or constituted misconduct. Rather he appears to
complain that they emphasized the need for the jury to unanimously agree
whether defendant threatened to rape Doe or whether he threatened to kill
her. To the extent the defendant is claiming the prosecutor improperly
argued a threat to rape alone is a threat to cause great bodily injury, the
record does not support his claim. In the context of the evidence, the
prosecutor’s comments about the rape threat involving great bodily injury
was not misleading. The prosecutor specifically argued the evidence showed
defendant threaten to “repeat what happened at the [San Francisco hotel],”
which included Doe’s being raped and “being yanked, tossed to the floor and
losing consciousness, which would be great bodily injury.”
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DISPOSITION
The judgment is affirmed.
Jackson, P. J.
WE CONCUR:
Burns, J.
Chou, J.
A170391/People v. Darien Nathaniel Diaz
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