People v. Franz

The following evidence was adduced at trial:

Erika Schmidt (age 20) testified that defendant (age 28) was a former boyfriend who lived with her briefly. They fought often. In mid-June 1999, defendant hit her and tried to choke her at Beriham Park after expressing anger that Schmidt received a telephone call from a male friend. Around the end of June 1999, Schmidt and defendant broke up (though he continued to drive her home from work), and defendant moved in with neighbor Judy Pena.

On the evening of July 29, 1999, while Schmidt was a passenger in defendant’s car, defendant asked to borrow money from Schmidt. They stopped for gasoline at an AM/PM store, where some “kids” approached and asked defendant to buy beer for them. He agreed to do so (testimony that was admitted over defense objection). While defendant was in the store, Schmidt saw in defendant’s car a photograph of two of her sister’s friends, ages 12 and 13, with their legs spread open. She told him it was disgusting. He said it was not his, and he hit her several times, bruising her eye and cutting the back of her ear. Schmidt was afraid of defendant because he previously told her she would be sorry if she called the police on him. Schmidt’s mother reported the incident to the police.

On the afternoon of July 31, 1999, Schmidt was on the street near her workplace, waiting for a taxi to take her home, conversing with her sister’s 17-year-old boyfriend, Matthew Zook, and Zook’s 17-year-old friend, Jordan Immer. Schmidt saw defendant’s car and ducked into a nearby pizza restaurant and went into the restroom to avoid him. When she emerged, Zook said defendant “got in his face.”

Schmidt, Zook and Immer took a taxi to Schmidt’s home, where she shut all the curtains and locked all the doors, because she was afraid of defendant.

The police arrived. Schmidt ran outside, crying. She heard defendant tell the officers that she had fallen down the stairs. At first, Schmidt did not tell the officers what happened, because she was afraid of defendant, but she spoke to the police after being taken to the hospital.

Schmidt admitted she was jealous of defendant’s new girlfriend, Judy Pena, and admitted she made telephone calls to Pena’s house, but said the calls she made were to return defendant’s calls to her.

A tape recording of Schmidt’s 911 call was played for the jury; on it was heard the yelling of a male voice, which Schmidt identified as defendant’s voice. A transcription of the 911 tape reads as follows:

“911 Operator: 911 emergency.

“[Schmidt]: Please help me! Help me! Help me!

“911 Operator: What’s going on?

“[Schmidt]: 5635 Canal Street.

“911 Operator: What’s happening?

“[Schmidt]: Hurry! Hurry! Hurry! Please! No! Please help me!

“911 Operator: What’s happening to you?

Zook said that when the police arrived, he “wasn’t scared then because they were there because I felt threatened still [sic] . . . [b]y [defendant].” Officer Jacobs came into the bedroom where Zook and Immer were sitting on the bed. Zook saw defendant standing behind the officer; defendant “did a gesture like this, like shush. And then ran his finger across his throat.” The record reflected Zook showed an index finger in front of the lips and then held up a thumb and ran it across his throat. Zook said defendant looked right at Zook’s eyes as he did this. Immer was also sitting on the bed. The officer was between the bed and the door with his back to the door. Zook understood defendant was threatening to “cut my throat” if Zook said anything to the officer. Zook took the threat seriously. Later that evening, Zook and Immer were walking home when Officer Santos pulled over and said he knew what had happened at the Schmidt house. Because defendant was not present, Zook told “what defendant had done.” Zook did not recall if he told the officer about defendant’s “silence motion and the cutting the throat motion.”

Jordan Immer testified he was in the bedroom and heard hitting sounds at the front door and Schmidt crying. Defendant came into the bedroom and hit Zook. Immer was scared. When the police arrived, Officer Jacobs came into the bedroom and stood by the bed where the boys were sitting. Immer did not answer the officer’s questions, because defendant was in the bedroom, behind the officer, and defendant “swiped his hand across his throat” perhaps twice, shook his head and put his finger to his lips, which Immer understood to mean defendant would slice his throat if he said anything to the police. Immer testified he did not recall if defendant said anything at that point. After the police left, defendant told them not to say anything. Later, Immer saw the police as he was walking home and told them what happened because he no longer felt threatened. Immer testified at trial that he never saw defendant hit Schmidt and denied having told the police he saw it.

On cross-examination, Officer Jacobs testified his instincts were developed with 20 years’ experience, and no one could have “snuck up behind [him] in that bedroom.”

Officer Frank Santos testified he spoke to Schmidt at the hospital, and she told him what happened. Later that evening, he came into contact with Zook and Immer, told them he had already learned from Schmidt what happened and knew they were scared. Officer Santos spoke with Zook and Immer separately; each gave a similar account of the incident corresponding with Schmidt’s account. Each boy said he came out of the bedroom and saw defendant hitting Schmidt. Zook indicated defendant made a verbal statement and physical gesture not to talk to the police. Officer Santos testified “[t]he verbal statement was noise coming out. . . . What I understood was that shush and a swipe across the throat. I don’t mean the actual say this or say that [sic], I mean a noise that they [sic] made and it was interpreted to them don’t talk to the police. . . . Some sort of noise, shushing noise. I believe one said he actually heard the noise and there was a finger to the mouth.”

The defense presented evidence that Schmidt falsely claimed to be pregnant with defendant’s child, and that Schmidt would provoke defendant to anger by calling him names and “pushing his buttons.”

During a break in the presentation of defendant’s case, the trial court granted the prosecutor’s request to dismiss counts 2 and 5, terrorist threat with respect to Schmidt and attempting to dissuade a witness with respect to Schmidt.

The jury returned verdicts finding defendant guilty on the following counts: spousal battery in violation of section 243, subdivision (e), as a

The People argue nonverbal conduct may constitute a “statement” within the meaning of section 422. They cite a dictionary (a 1980 edition) definition of “verbal” as including a verbal symbol. Defendant’s reply brief cites another dictionary (a 1974 edition) definition that “verbal” means consisting of or using words only and not involving action. We note a more current dictionary also includes as a definition of “verbal”: “concerned merely with words, as distinguished from facts, ideas, or actions.” (Webster’s New World Dict. (3d college ed. 1988) p. 1482.)

In light of these differing dictionary definitions of “verbal,” it is apparent the language of section 422 is ambiguous, and we shall turn to other aids of interpretation.

The first of these is that, “ ‘ “It is a settled rule of statutory construction that where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different legislative intent existed with reference to the different statutes.” ’ ” (In re Marriage of Corman (1997) 59 Cal.App.4th 1492 , 1499 [ 69 Cal.Rptr.2d 880 ], quoting In re Jose A. (1992) 5 Cal.App.4th 697 , 701-702 [ 7 Cal.Rptr.2d 44 ].)

As noted by defendant, the Legislature knows how to make a statute applicable to nonverbal communication. Thus, the 1998 enactment that amended section 422 also amended stalking statutes that expressly define “threat” to include a verbal or written threat “or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct . . . .” (§ 646.9, subd. (g); Civ. Code, § 1708.7; Stats. 1998, ch. 825.) The omission of any reference to “conduct” in section 422 suggests the Legislature did not intend for communicative conduct to be penalized in that statute.

Here, in light of the Legislature’s express inclusion of “conduct” in the stalking statutes, and its omission from section 422, we have a doubt that is reasonable and realistic that the Legislature intended to include mere conduct within the ambit of section 422.

The People cite Evidence Code definitions. Thus, Evidence Code section 225 provides: “ ‘Statement’ means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.” Evidence Code section 250 provides: “ ‘Writing’ means handwriting, typewriting, printing, photostating, photographing, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof.”

However, even assuming for the sake of argument the Evidence Code definitions apply to the Penal Code at all (cf. Evid. Code, §§ 100, 300; People v. Watkins (1996) 45 Cal.App.4th 485 , 489 [ 53 Cal.Rptr.2d 13 ]; People v. Cooley (1993) 14 Cal.App.4th 1394 , 1398-1399, fn. 5 [ 18 Cal.Rptr.2d 346 ]), they do not support the People’s position. Thus, while it is true that Evidence Code section 225 provides that a “statement” may mean nonverbal conduct, it is equally true that the Evidence Code applies, “[e]xcept as otherwise provided by statute . . . .” (Evid. Code, § 300; People v. Watkins, supra, 45 Cal.App.4th at p. 489.) Here, as pertinent, section 422 expressly provides that the “statement” must be “made verbally.” The Penal Code definition controls. Indeed, because Evidence Code section 225 expressly refers to “nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression,” the Evidence Code statute further demonstrates that the Legislature knows how to define nonverbal conduct, as a means of communication, when it wants to.

Nor were defendant’s gestures “a writing” within the meaning of Evidence Code section 250. That section requires “recording upon any tangible thing.” Defendant’s gestures were not recorded “upon any tangible thing.”

Though not cited by the People, we note a concurring opinion in People v. Mendoza (1997) 59 Cal.App.4th 1333 [ 69 Cal.Rptr.2d 728 ], said “section 422 does not require the threat be literal or even verbal. Sending a government informant a dead, tongueless rat [which did not occur in the case before the court] may well violate section 422.” (Id. at p. 1347, original italics.) However, Mendoza predates the 1998 amendment to section 422 (see fn. 1, ante), and in any event a concurring opinion is not precedential authority.

We conclude section 422 required in this case proof that defendant’s threat to be quiet was “made verbally,” i.e., that defendant orally made some noise or sound that was capable of conveying meaning.

2. The Record Contains Substantial Evidence That Defendant Made a Verbal Statement.

We turn to the question whether substantial evidence supports defendant’s conviction for violating section 422. The prosecutor argued to the jury that the section 422 offenses with respect to Zook and Immer occurred when Officer Jacobs was in the bedroom, with his back to the door, questioning Zook and Immer, and defendant appeared behind the officer.

Defendant argues the only substantial evidence concerning this incident was of conduct, not a statement, i.e., that defendant put his finger to his lips in a “shushing gesture” and slid his finger across his throat.

Thus, Zook testified at trial that defendant stood behind the officer, “did a gesture like this, like shush [witness demonstrated by placing his index finger in front of his lips]. And then ran his finger across his throat.”

Immer testified at trial as follows:

“Q And was there some reason why you didn’t say anything [to Officer Jacobs] with [defendant] in the bedroom [behind the officer]?

“A Yes.

“A No.”

On cross-examination, Immer testified:

“Q And what did [defendant] say to you after he did [the swiping motion across the throat]?

“A Not to say anything.

“Q And he said that by speaking; is that right?

“A He nodded his head and did that. (Witness demonstrating.)

“Q Did he say anything?

“A I don’t recall.

“Q But he nodded his head and put his finger to his lips?

“A Yes.

“Q That was after the motion across the neck?

“A Yes.”

Assuming that the foregoing testimony does not describe a verbal statement, that description is nonetheless found in the testimony of Officer Santos. Thus, Officer Santos, who contacted Zook and Immer in the street later in the evening, testified during cross-examination by defendant’s counsel that the minors did report that defendant made a verbal noise. Thus, Officer Santos testified:

“Q . . . [D]id Mr. Immer tell you that [defendant] stated to them that they should not talk to the police?

“A He made a statement similar to that.

“Q Did you ask them [sic] to go into detail about that statement?

“Á Yes. I wrote down the statement they told me.

“Q And what was the statement that [defendant] allegedly gave to tell these guys not to go to the police—to tell them not to go to [the] police?

“A If you would like the exact statement, I could refer to my report.

“Q Thank you.

“A If I have that page. Mr. Zook’s statement was something about not talking to the police.

“Q He said [defendant] stated that to him?

“A [Defendant] made a statement generally about not talking to the police.

“Q [H]e made a statement. Did you take that to mean a verbal or oral statement?

“A He made a verbal statement and a physical gesture.

“Q He made a verbal statement. Did Mr. Zook show you the physical gesture?

“A Yes; he told me the gesture and the verbal statement together.

“Q And did Mr. Immer show you a verbal statement or did Mr. Immer show you a gesture?

“A Yes, he did.”

Officer Santos further testified upon cross-examination by defendant’s counsel;

“Q Okay. Just so we’re clear by verbal statement does that mean he said anything?

“A The verbal statement was noise coming out. If you would like me to demonstrate?

“Q Sure.

“A What I understood was that shush and a swipe across the throat. I don’t mean the actual say this or say that. I mean a noise that they made and it was interpreted to them don’t talk to the police.

“Q So he said shush and he actually made the—

“A Some sort of noise, shushing noise. I believe one said he actually heard the noise and there was a finger to the mouth.”

Thus, Officer Santos testified that at least one of the victims reported defendant made a verbal noise.

Nor do we have to decide whether Santos’s testimony constitutes substantial evidence on the ground that Santos testified to a prior inconsistent statement by Zook or Immer. (But see Evid. Code, § 1235; People v. Chavez (1980) 26 Cal.3d 334 , 356 [ 161 Cal.Rptr. 762 , 605 P.2d 401 ]; People v. Green (1971) 3 Cal.3d 981 [ 92 Cal.Rptr. 494 , 479 P.2d 998 ].) Santos’s testimony was elicited by defendant without objection or motion to strike. “Material and relevant evidence that is technically incompetent and inadmissible under the exclusionary rules, if offered and received without a proper objection or motion to strike, will be considered in support of the judgment.” (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 393, p. 484.)

Consequently, the testimony of Officer Santos that at least one victim heard defendant make a “shushing” noise constitutes substantial evidence of a verbal “statement,” the import of which was amplified by the throat-slashing gesture to constitute a threat to kill if the victim talked to the police. “[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone.” (People v. Mendoza, supra, 59 Cal.App.4th at p. 1340, followed in People v. Butler (2000) 85 Cal.App.4th 745 , 754 [ 102 Cal.Rptr.2d 269 ].)

Defendant argues he “could not have made” a shushing sound or statement, because Officer Jacobs, who was standing between the defendant and the minors at the time in question, testified he did not hear any noise behind him and he would have heard if someone “snuck up behind him.” However, the testimony of Officer Jacobs does not make it impossible for defendant to have made a sound.

While it may have been foolish for defendant to make a shushing noise in the officer’s presence, it was not impossible or inherently improbable for him to have done so.

Defendant argues the prosecutor in closing argument to the jury did not rely on a verbal statement. However, defendant cites no authority suggesting that a prosecutor must argue evidence to the jury in order for the evidence to constitute substantial evidence in support of a judgment. Moreover, even assuming for the sake of argument that that is the law, the record does not support defendant. The record shows the prosecutor argued to the jury: “They [Zook and Immer] are asked [by Officer Jacobs] about what happened. They say they won’t say anything. They told you why. They saw [defendant] walk up behind Officer Jacobs. Saw [defendant] make a motion across his neck, make a quite [sic] sound or a quite [sic] motion. And then he leaves.” (Italics added.)

Moreover, defense counsel in closing argument reminded the jury that Officer Jacobs testified he had 20 years experience as an officer and would know if somebody was sneaking up behind him, and “[h]e said no one snuck up on him. [¶] Officer Santos indicated he told you what the verbal statement or the verbal communication was, shush. Even more softly, more softly yet. Shush. I have to think Officer Jacobs would have heard that.”

Thus, the question whether there was a statement “made verbally” was put in issue in closing arguments.

3. Unequivocal Statement

Defendant argues the evidence was insufficient to convict him of terrorist threats because the throat-slashing gesture was not an “unequivocal statement” for section 422 purposes. We disagree.

Section 422 (see fn. 1, ante) requires that the threat “on its face and under the circumstances in which it is made, is 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 . . . .”

Defendant says the record was unclear which gesture defendant made first—the finger to the lips or the finger across the throat. Defendant proffers no rational explanation why this should make a difference. Defendant says a finger slashed across the throat also means “cut” or “quiet.” Defendant claims the context in which the gesture was made did not clarify whether the gesture meant “quiet” or “quiet or I’ll cut your throat.” Defendant cites authority that wordless conduct is particularly susceptible to misconstruction. Defendant argues a gesture to be quiet, absent words to clarify the meaning of the gesture, may not form the basis for a section 422 conviction. However, we have seen there was evidence of a verbal statement.

In rejecting an argument that a threat was not unconditional as required by section 422, People v. Bolin (1988) 18 Cal.4th 297 [ 75 Cal.Rptr.2d 412 , 956 P.2d 374 ], observed the statute did not require an absolutely unconditional threat, but that the threat be “so” unconditional as to convey gravity of purpose and immediate prospect of execution. (Id. at pp. 339-340.) Bolin said, “ ‘[t]he use of the word “so” indicates that 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.]” (Id. at p. 340.)

Here, defendant’s shushing noise, accompanied by the throat-slashing gesture, was “so” unequivocal that it conveyed to Zook and Immer a sufficient gravity of purpose and immediate prospect of execution of the threat.

4. Immediacy

Defendant contends the throat-slashing gesture was made under circumstances in which there was no immediacy of the threat, as required by section 422. We disagree.

1. That a person knowingly possessed paper made use of in counterfeiting bank notes or bills but not consisting of the completed counterfeit bank notes or bills themselves;

2. That the possession was with criminal intent.

It is apparent that an element of the offense described by section 480 is the possession of paper not consisting of the counterfeit bank notes or bills themselves. This element of the offense is not included in the elements of the offense described by 18 United States Code section 472. Indeed, the federal offense requires a person to possess completed counterfeit bills or notes; i.e., counterfeit money. Since an element of the offense defined by section 480 is not found in the federal offense, the federal offense does not include “all of the elements of the particular felony as defined under California law” as required by section 667.5, subdivision (f).

Nor does section 475, subdivision (a), constitute a comparable California crime for purposes of section 667.5, subdivision (f). Indeed, as we have noted, the People do not contend otherwise. Section 475 provides: “Every person who possesses or receives, with the intent to pass or facilitate the passage or utterance of any forged, altered, or counterfeit items, or completed items contained in subdivision. (d) of Section 470 with intent to defraud, knowing the same to be forged, altered, or counterfeit, is guilty of forgery.” (Italics added.)

As defendant points out, the italicized intent required by section 475 is not an element of the federal offense, and therefore section 475 does not constitute a comparable California felony for purposes of section 667.5, subdivision (f).

The People mention sections 470, subdivision (d) and 476, but they do not present any argument that those sections support the enhancement. Instead, they merely assert: “It is submitted that possession of counterfeit currency with the intent to defraud encompasses all of the elements of section 480(a), if not sections 470(d) and 476.”

In any event, neither section 470, subdivision (d) nor section 476 will support the enhancement.

As pertinent, section 470, subdivision (d) provides: “Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine,

Our Supreme Court has held that, where a prior conviction finding is reversed on appeal for a lack of substantial evidence, the proper procedure is to remand the case to the trial court for a retrial of the prior conviction allegation. (People v. Morton (1953) 41 Cal.2d 536 , 543-545 [ 261 P.2d 523 ].)

Such a retrial of a prior conviction allegation does not offend federal or state prohibitions on subjecting a defendant to double jeopardy. (Monge v. California (1998) 524 U.S. 721 [ 118 S.Ct. 2246 , 141 L.Ed.2d 615 ]; People v. Monge (1997) 16 Cal.4th 826 , 845 [ 66 Cal.Rptr.2d 853 , 941 P.2d 1121 ].)

Defendant relies on People v. Mitchell, supra, 81 Cal.App.4th 132 , where Division One of the Fourth District held such a retrial of a prior conviction allegation was barred by principles of res judicata and law of the case.

However, in People v. Scott (2000) 85 Cal.App.4th 905 , 918-926 [ 102 Cal.Rptr.2d 622 ], Division Three of the Second District concluded Mitchell was wrongly decided. On April 11, 2001, our Supreme Court denied review in Scott. In Cherry v. Superior Court (2001) 86 Cal.App.4th 1296 , 1303 [ 104 Cal.Rptr.2d 131 ], Division Four of the Second District recently followed Scott and declined to follow Mitchell. On May 2, 2001, our Supreme Court denied review in Cherry.

We need not repeat Scott's lengthy analysis here. Suffice it to say that we agree with it, and we respectfully decline to follow Mitchell.

We also agree with the following analysis of the doctrine of law of the case as articulated in Scott:

“Appellant also contends that our determination that the evidence was not sufficient to prove the alleged prior serious felony conviction will become the law of the case upon remand and thereby prevent the trial court from reaching a contrary conclusion. We disagree.

“The answer to this argument is clearly and easily settled by the express language of the Supreme Court in Monge. After concluding that neither state

nor federal double jeopardy principles would bar a retrial of a prior conviction allegation, the court went on to note that secondary issues might well be raised. ‘For example, the Court of Appeal’s determination that the evidence was insufficient to prove defendant’s prior conviction was of a serious felony is, at the very least, the law of this case. Thus, the prosecution would have to present additional evidence at a retrial of the prior conviction allegation in order to obtain a different result. What limitations might apply to this additional evidence (other than the limitations we identified in People v. Reed [(1996)] 13 Cal.4th 217 [ 52 Cal.Rptr.2d 106 , 914 P.2d 184 ], and [People v.] Guerrero [(1988)] 44 Cal.3d 343 [ 243 Cal.Rptr. 688 , 748 P.2d 1150 ]) we do not decide, because the Court of Appeal did not address that issue.’ ([People v.] Monge, supra, 16 Cal.4th at p. 845.)

“Although dicta, this language is dispositive of the issue before us. To the extent that the People attempt on remand to prove the prior conviction allegation using only the evidence presented at the first trial, then the law of the case will compel the same result (i.e., the evidence is insufficient). However, the doctrine cannot be used to prevent the retrial. It merely means that, in order to succeed, the People will have to produce additional evidence at such retrial. Although the Mitchell III court asserts that such additional evidence must be ‘newly discovered evidence which [the People] in due diligence, could not have presented at the first trial,’ it cites no authority for such a requirement. Mitchell III relies partially on Monge for that principle, but Monge expressly requires only that there be ‘additional evidence.’ ” (People v. Scott, supra, 85 Cal.App.4th at p. 924.)

Defendant also relies upon our opinion in People v. Coley, supra, 52 Cal.App.4th 964 , 969, where we mentioned the general rule that, in a criminal case, a finding of insufficiency of the evidence by the court of appeal bars a retrial. However, Coley did not involve the retrial of a prior conviction allegation. The principles governing retrials of prior convictions are set out in the federal and state Monge cases, which do not bar retrials of prior convictions even where an appellate court finds a lack of substantial evidence. (Monge v. California, supra, 524 U.S. 721 [ 118 S.Ct. 2246 , 141 L.Ed.2d 615 ]; People v. Monge, supra, 16 Cal.4th 826 .)

We therefore conclude defendant’s arguments are without merit; we shall remand to the trial court for a retrial of the prior prison term enhancement.

Disposition

The trial court’s finding that the section 667.5, subdivision (b) enhancement was true is reversed, and the cause is remanded to the trial court for a

Davis, J., and Morrison, J., concurred.

A petition for a rehearing was denied May 24, 2001, and appellant’s petition for review by the Supreme Court was denied August 22, 2001.