P. v. Umstead

 

 

 

 

 

 

 

 

 

Filed 10/4/13  P. v. Umstead 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NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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.   WILLIAM THOMAS UMSTEAD,               Defendant and Appellant.

E056259               (Super.Ct.No. SWF1100485)               OPINION

 

            APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  Jerry E.
Johnson, Judge.  (Retired judge of the
Los Angeles Superior Court, assigned by the Chief Justice pursuant to art. VI,
§ 6, of the Cal. Const.) 
Affirmed.

            Dennis
L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and
Sean M. Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

            Defendant
William Thomas Umstead appeals from judgment entered following jury convictions
for committing corporal injury on the mother of his child (Pen. Code,
§ 273.5, subd. (e)(1)href="#_ftn1"
name="_ftnref1" title="">^[1]; count 1), and href="http://www.mcmillanlaw.com/">making criminal threats (§ 422; count
2).  The jury also found true that
defendant had two prior prison terms (§ 667.5, subd. (b)), had been convicted
of a prior serious felony (§ 667, subd. (a)), and had a strike prior (§§ 667,
subds. (c) & (e)(1), 1170.12).  The
trial court sentenced defendant to 11 years in prison.

            Defendant
contends there was insufficient evidence to support his conviction for making
unlawful criminal threats because the alleged threat was a conditional
statement.  We conclude the evidence was
sufficient to establish the threat was unequivocal, unconditional, immediate,
and specific.  The judgment is affirmed.

II

FACTS

            Defendant
and Jane Doe ended their nine-year relationship and separated about a week
before the events of February 20, 2011.  The couple and Doe’s two daughters were
living with defendant’s mother and step-father, George Amador.  The daughters were seven and eight years
old.  Defendant was the biological father
of one of the daughters.  Father moved
out and Doe and her daughters remained in defendant’s mother and step-father’s
home.

            At
around 7:30 a.m., on February 20, 2011, defendant entered his
mother and step-father’s home and yelled, “I’m taking the kids to church.”  Doe asked defendant how he planned on getting
the girls to church since he did not have a car.  Defendant became angry and paced back and
forth.  After about five minutes, he
accused Doe of being on drugs.  Doe had a
history of drug abuse.  She told
defendant she was not on drugs and told defendant he was on drugs.  Defendant started yelling.  He accused her of cheating and cast a
multitude of insulting, crude aspersions upon Doe in front of her two
daughters.  Doe told her daughters to go
to their room because she did not want them to hear what defendant was saying
and told defendant to stop saying such things about her.  Defendant replied that he would not stop
because what he was saying was the truth.

            Amador
asked defendant to go outside and calm down. 
After talking with Amador outside for 15 or 20 minutes, defendant
reentered the house and told Doe he was taking her daughters to church in
Amador’s truck.  Doe refused to allow him
to do so.  Defendant insisted.  Defendant alternated between being calm and
yelling at Doe. 

            Eventually,
defendant stopped talking about the girls and began accusing Doe again of
cheating on him and using drugs. 
Defendant stood in the bathroom doorway while Doe was in the
bathroom.  Defendant got close to Doe and
said, “I should just fuck you up now.” 
Doe told him to leave her alone. 
Defendant leaned about six inches from her, and yelled at her.  Doe did not move.  Defendant leaned back his head and then
forcefully head-butted Doe.  Amador
witnessed the incident.  Defendant’s
forehead started bleeding. 

Doe said to defendant, “Are you
done now?”  Doe initially testified that
defendant loudly replied, “I know I’m going to prison, so I should just finish
the job, kill everybody here and burn down the house.”  Later, Doe testified that defendant
threatened to “kill us all in the house and burn the house down.”  Doe testified she was scared “because
[defendant had] tried it before.”

Amador testified that he
heard defendant say he was “going to burn down the house and kill
everybody.”  Amador said he could not
remember if defendant said, “I should” burn down the house and kill
everyone.  Later, Amador testified that,
in addition to saying, in effect, that he was going to burn the house down and
kill everyone, defendant said he was going back to prison so it did not matter;
“So he would just kill everyone.”  Amador
was nervous about the entire situation. 
Defendant was very upset and outraged. 
He started “punching his head” and hitting and “slapping” himself.  Defendant screamed and yelled, “You haven’t
seen crazy yet.”  Amador was more concerned
about Doe and her children than scared for himself and others in the house.

            Amador
told Doe to leave with her children. 
Defendant grabbed the two girls and stood in front of them, yelling, “I
don’t want you growing up to be like your mom, being a whore like your mom, and
spreading your legs open for any man that comes by.”  Defendant told Doe’s daughter who was not
fathered by him, “[y]ou’re not my daughter, and I hate you, and I can’t stand
seeing you.”  Amador grabbed the girls
and drove Doe and the girls to a nearby store parking lot.  Doe called the police.  As they were waiting for the police, Amador
saw defendant walking up the street. 

Doe told the 911 dispatcher
that defendant had just “head-butted” her and “[h]e said he was gonna kill [Doe].”  Doe said she escaped from him but he was
walking toward her.  The dispatcher told
Doe to stay away from defendant.  Doe
said she was trying.  Shortly thereafter,
Doe met police officers in the store parking lot and then went to the hospital.

Police Detective Spencer
Parker testified that on February 20, 2011, at 9:45 a.m., he responded to a
dispatch call.  He contacted the victim,
Doe, at the hospital.  She was waiting to
be treated.  She was very upset, crying,
and sobbing.  Parker described her as looking
“terrible.”  He noticed “a huge contusion
over her left eye.”  Her eye was swollen
shut and purple.  It looked painful.  Doe also had bruise marks in the shape of
fingerprints along her left bicep and upper arm.  Later, on March 2, 2011, Doe met with police
investigators.  Her eye was still badly
bruised and swollen.  Her injuries lasted
about three weeks.

Prior Domestic Violence
Incidents

            Prior
to the charged incident, defendant committed several other acts of href="http://www.fearnotlaw.com/">domestic violence against Doe.  Less than a week before the charged offense,
on February 16, 2011, defendant and Doe argued over money at defendant’s
mother’s house.  Defendant also accused
Doe of having an affair, and called her a “fucking bitch and a whore.”  Defendant paced back and forth, and hit
himself in the head.  Defendant then
head-butted Doe, not quite as hard as on February 20, 2011, but hard enough to
leave a bump on Doe’s forehead. 

About five years before, on
August 23, 2006, defendant punched Doe in the face multiple times, causing a
black eye, and threatened to kill her and the girls.  Doe tried to call 911 but defendant pulled
the telephone cord out of the wall. 
Defendant then choked Doe and put a pillow over her face in an attempt to
smother her.  She “felt like [she] was
going to die.”  On December 5, 2006,
defendant was convicted of spousal abuse and making criminal threats.  After defendant was released from prison, Doe
reunited with defendant because she “thought he changed.”  Defendant also had a 2002 conviction for
receiving a stolen vehicle.

III

SUFFICIENCY OF EVIDENCE OF
MAKING CRIMINAL THREATS

            Defendant
contends there was insufficient evidence to support his conviction for making
criminal threats (§ 422; count 2).  We
disagree.

In order to prove the
offense of making criminal threats in violation of section name="SR;2564">422, the following elements must be established:  (1) The defendant willfully threatened to
commit a crime which would result in death or great bodily injury to another person,
(2) the defendant made the threat with the specific intent that the statement
was to be taken as a threat, even if there was no intent of actually carrying
it out, (3) the threat 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) the threat actually caused the person threatened
to be in sustained fear for his or her own safety, and (5) the threatened
person’s fear was reasonable under the circumstances.  (People v. Toledo (2001) 26 Cal.4th
221, 227-228.)

Defendant challenges the
sufficiency of evidence as to the third element.  He argues that his statement that he “should
just finish the job,” kill everybody and burn down the house, was not an
unconditional, unequivocal threat. 
Defendant asserts the only reasonable inference the jury could make was
that this was the only threat defendant made, and it was not “unequivocal,
unconditional, immediate, and specific” (§ 422) because it was prefaced with
the word “should.”  This use of the word,
“should,” defendant argues, signified that commission of the threatened acts
was uncertain or conditional because such acts might not occur.  The fact defendant ultimately did not commit
the threatened acts by no means proved that his threat was equivocal or
conditional when made, particularly since the evidence shows Doe, Amador, and
the girls immediately left after defendant made the threat, and shortly
thereafter, defendant was arrested. 

Likewise, the absence of any
weapons in the house does not establish that defendant did not make a criminal
threat under section 422.  Certainly,
defendant was capable of carrying out his threat without a weapon.  A rational trier of fact could have
reasonably found beyond a reasonable doubt, based on the evidence as a whole,
that defendant made an “unequivocal, unconditional, immediate, and specific”
threat (§ 422) by stating that he was going to kill Doe and everyone else in
the house, and burn down the house.

Although Doe initially
testified that defendant said that he “should
just finish the job, kill everybody here and burn down the house” (italics
added), there was substantial evidence that he did not actually use the word
“should” when he made the threat. 
Rather, he stated unequivocally that he was going to kill Doe and others
in the house, and burn down the house.  Later
in the trial, Doe testified that defendant threatened to “kill us all in the
house and burn the house down.”  Doe
testified she feared he would do this “because [defendant had] tried it
before.” 

In addition, Amador
testified that he also heard defendant say he was “going to burn down the house
and kill everybody.”  Amador testified he
feared defendant would carry out his threat because defendant said he was going
back to prison so it did not matter; “So he would just kill everyone.” 

Even if defendant used the
word, “should” when making the threat, the evidence was sufficient to support
the finding that the threat qualified as a criminal threat under section
422.  “[T]he reference to an
‘unconditional’ threat in section 422 is not absolute. . . .  ‘[U]se of the word “unconditional” was not
meant to prohibit prosecution of all threats involving an “if” clause, but only
to prohibit prosecution based on threats whose conditions precluded them from
conveying a gravity of purpose and imminent prospect of execution.’  . . . 
‘Most threats are conditional; they are designed to accomplish
something; the threatener hopes that they will accomplish it, so that he
won’t have to carry out the threats.’”  (>People v. Bolin (1998) 18 Cal.4th
297, 339 (Bolin).)  Under section 422, “‘unequivocality,
unconditionality, immediacy and specificity are not absolutely mandated, but
must be sufficiently present in the threat and surrounding circumstances to
convey gravity of purpose and immediate prospect of execution to the
victim.’  [Citation.]  . . . 
‘[T]here are different degrees of unconditionality.  A threat which may appear conditional on its
face can be unconditional under the circumstances.  . . .  [¶] 
Language creating an apparent condition cannot save the threatener from
conviction when the condition is illusory, given the reality of the circumstances
surrounding the threat.  A seemingly
conditional threat contingent on an act highly likely to occur may convey to
the victim a gravity of purpose and immediate prospect of execution.’  [Citation.]” 
(Bolin, at p. 340.) 

Here, even assuming defendant
prefaced the threat with the word, “should,” the threat conveyed “a gravity of
purpose and an immediate prospect of execution” (Bolin, supra, 18 Cal.4th at p. 340), sufficient to constitute a
criminal threat under section 422.  This
is apparent from Amador’s reaction to defendant’s threat.  Amador testified he was shocked and nervous
about the entire situation.  Defendant
was very upset and outraged.  He was
“punching his head” and hitting and “slapping” himself.  Defendant was screaming and yelled, “You
haven’t seen crazy yet.”  Defendant’s
behavior before and after defendant made the threat, established that at the
time he made the threat, he was capable of carrying out the threat,
particularly since defendant said he believed he had nothing to lose because he
was going to prison anyway.  Defendant
was enraged at Doe and emotionally volatile. 
This conveyed a gravity and immediacy of his threat, as demonstrated by
evidence that, because Amador was very concerned about Doe and her children, he
and Doe fled with the girls, and Doe called 911.

The totality of the evidence
was more than sufficient to support a reasonable finding that, regardless of
whether defendant actually used the word, “should,” defendant made an
“unequivocal, unconditional, immediate, and specific” criminal threat in
violation of section 422.  Even if the
evidence arguably supported other inferences, such evidence was insufficient to
undermine the jury’s verdict.  (People
v. Farnam (2002) 28 Cal.4th 107, 143.)

IV

DISPOSITION

            The
judgment is affirmed.

            NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON                     

                                                J.

 

We concur:

 

 

HOLLENHORST                   

                               Acting P. J.

 

 

KING                                     

                                              J.