P. v. Shaw

Filed 1/28/05 P. v. Shaw CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES ALLEN SHAW,
Appellant and Defendant.
D042877
(Super. Ct. No. SCE224064)
ORDER DENYING PETITION FOR
REHEARING AND MODIFICATION
OF OPINION
[NO CHANGE IN JUDGMENT]
THE COURT:
The opinion filed in this case on January 7, 2005, is modified to delete the section
entitled "Sufficiency of the Evidence" on pages 4 to 9. This section is replaced with the
attached.
Except for the modification set forth above, the opinion previously filed remains
unchanged. The request for rehearing is denied.
[NO CHANGE IN JUDGMENT]

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BENKE, Acting P.J.
Copies to: All parties.

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DISCUSSION
I. Sufficiency of the Evidence
1. General Legal Principles
To prove a violation of section 422, the prosecution had to show that Shaw (1)
"willfully threaten[ed] to commit a crime which [would] result in death or great bodily
injury to another person"; (2) 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 ("made verbally, in writing, or by means of an electronic
communication device") 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 or for his or her immediate family's safety"; and, (5) the threatened
person's fear was "reasonabl[e]" under the circumstances. (§ 422.)
2. Criminal Threat
Because making a criminal threat implicates First Amendment interests, our high
court recently concluded that reviewing courts must apply the independent review
standard when examining a trier of fact's determination that the communication at issue
constituted a criminal threat. (In re George T. (2004) 33 Cal.4th 620, 632.) Under this
standard of review, we examine the statements at issue and the circumstances under
which they were made to determine whether the statements constituted a criminal threat
entitled to First Amendment protection. (Id. at p. 631.) In making this determination we

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independently examine the entire record, but defer to the trier of fact's credibility
determinations. (Id. at p. 634.)
A purported threat must be examined on its face, in context and in light of the
surrounding circumstances to determine if it conveyed the required gravity of purpose
and immediate prospect of execution. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.)
Relevant circumstances include the prior history of disagreements between the
perpetrator of the threat and the victim (id. at p. 1138), with the inquiry focusing on the
effect the words had on the victim, rather than the precise words uttered. (People v.
Stanfield (1995) 32 Cal.App.4th 1152, 1158.) Section 422 does not require an immediate
ability to carry out a threat (People v. Lopez (1999) 74 Cal.App.4th 675, 679-680) and
even an ambiguous statement that does not communicate a precise time or manner of
execution may violate section 422 when it is viewed in light of the surrounding
circumstances. (People v. Butler (2000) 85 Cal.App.4th 745, 752-753.)
After examining Shaw's statements and the surrounding circumstances under the
independent review standard, we conclude that the statements at issue constituted a
criminal threat and were not entitled to First Amendment protection because they
threatened to commit a crime that would result in death or great bodily harm, there
existed an immediate prospect of execution and Shaw harbored the specific intent that his
statement be taken as a threat.
On July 5, Shaw telephoned Amy at home and in a firm and serious voice that was
different from his normal tone, told her to stop working at the Academy within 60 days
because something was going to happen. When Amy inquired whether he intended to do

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something to the business, Shaw responded that "we'll just have to see now, won't we"
and implied that he would not get in trouble because he would be dead. Although Amy
admitted that Shaw threatened to destroy the business "pretty much every time" they
discussed it, she had had no contact with Shaw for about a year prior to this conversation
and believed Shaw intended to physically destroy the business. Based on Shaw's
unequivocal comment to Amy that "something[] [was] going to happen," Vitale believed
that Shaw would follow though with a suicide bombing during business hours.
Vitale's conclusion that Shaw threatened to physically destroy her and the business
was not unreasonable based on her prior experiences with him. (In re Ricky T., supra, 87
Cal.App.4th at p. 1138.) Vitale had a lengthy history of problems with Shaw relating to
her business; among other things, he interfered with its bank accounts, repeatedly drove
past the business and was detained one evening by police on the business premises after
trying to enter the building without keys. Vitale had also previously received a Los
Angeles Times newspaper article about suicide bombings at small businesses and
believed Shaw had sent the article because he read this newspaper and because she had
had no trouble with anyone, nor had anyone else ever threatened her business. That
Shaw possessed an envelope addressed to his daughter containing a photocopy of a Los
Angeles Times newspaper article about suicide and suicide bombings when police
arrested him provides further support for the reasonableness of Vitale's beliefs.
Section 422 does not require that a threat be communicated directly to the victim
and a defendant may be found liable even if the threat was made through an intermediary;
however, it must be shown that the defendant specifically intended that the threat be

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conveyed to the victim. (In re David L. (1991) 234 Cal.App.3d 1655, 1659.) Such
specific intent can be inferred from the circumstances. (Ibid.) Here, Shaw had reason to
believe that his daughter would tell her mother about the threat based on the fact Amy
was 16-years old and lived with Vitale, who owned the business. Under these
circumstances we conclude that Shaw specifically intended to convey the threat to Vitale.
Based on Shaw's language, the parties' background and the context of Shaw's
statement, we conclude that Shaw's statement was a criminal threat that was not protected
by the First Amendment.
3. Remaining Elements
Because we conclude that the statements constituted a criminal threat, we evaluate the
remaining elements of section 422, which focus on the victim and not the defendant's speech,
under the substantial evidence standard. We review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence (i.e.,
evidence that is credible and of solid value), from which a rational trier of fact could find
beyond a reasonable doubt that the accused committed the offense. (People v. Johnson
(1980) 26 Cal.3d 557, 578.) It is not our function to reweigh the evidence (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206) and reversal is not warranted merely because the circumstances
might also be reasonably reconciled with a contrary finding. (People v. Thomas (1992) 2
Cal.4th 489, 514.)
A necessary element of a criminal threat is sustained fear, meaning fear that is both
reasonable and real. (People v. Ortiz (2002) 101 Cal.App.4th 410, 417.) Fear is
"sustained" if it continues for "a period of time that extends beyond what is momentary,

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fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Here, Vitale
testified that she feared Shaw would commit a suicide bombing during business hours
because he warned Amy to find another job within 60 days. Further, Vitale contacted the
police a few days later. Her delay in contacting police was not unreasonable in light of the
60-day execution deadline and it did not vitiate the fear she immediately experienced and
continued to experience as a result of Shaw's statements to Amy.
The Attorney General argues that Amy was also a victim and we should consider
her fear in assessing the sufficiency of the evidence, but the record does not support this
assertion. After the trial court dismissed one of the counts, the People specified that one
count pertained to Amy and the other to Vitale. While it was initially unclear which
count remained, at trial the prosecutor made clear that Vitale was the victim. (See section
IV, infra.)
Finally, even if the independent standard of review applies to these remaining
elements, we independently find the evidence is sufficient to support these elements.
Vitale feared Shaw and believed that he intended to bomb her business. Her prior
experiences with Shaw made her fear reasonable under the circumstances.

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