P. v. Shaw 1/7/05 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D042877

Case Date: 04/20/2005

Preview:Filed 1/7/05 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Defendant and Appellant.

D042877

(Super. Ct. No. SCE224064)

APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. Affirmed in part, reversed in part and remanded.

James Allen Shaw appeals a judgment entered after a jury convicted him of one count of making a criminal threat. He contends (1) insufficient evidence supported his conviction; (2) the trial court erred in admitting evidence of prior bad acts and irrelevant evidence; (3) prosecutorial misconduct requires reversal of his conviction; (4) the court erred by failing to give a unanimity instruction; and (5) the cumulative effect of these errors warrants reversal. We reject these assertions and affirm the judgment of conviction.

Shaw also contends that the imposition of the upper term violated his right to a jury trial as described in Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct. 2531] (Blakely). We agree and remand the matter for resentencing. FACTUAL AND PROCEDURAL BACKGROUND Shaw married Ana Maria Vitale in 1979, and the couple had three daughters (Melissa, Jennifer and Amy). They separated in April 1999 and after an incident that resulted in Shaw's arrest and subsequent conviction, Vitale obtained a permanent restraining order against him. During the subsequent divorce proceedings, the couple signed a marital settlement agreement designating Vitale the sole owner of the Little Village Academy (the Academy), a day-care center that Vitale opened in January 1999. The agreement specified that Shaw was to have no involvement in the Academy and that Vitale would repay him $78,000 that he loaned her during the marriage, but that Shaw would forfeit the loan repayment if he interfered in the Academy's business. The family court later ordered Shaw's right to have Vitale pay the loan forfeited after he tried to regain control of the business by removing Vitale's name from the Academy's bank account and attempting to have her name removed as the Academy's corporate officer. About four weeks after the court's order, Vitale received an envelope in the mail containing a Los Angeles Times newspaper article about suicide bombings at small businesses. She reported the incident to police. Although Vitale did not recognize the handwriting on the mailing envelope, it had no return address and misspelled her name, she believed that Shaw had sent the article because he read this newspaper and knew she owned a small business. Melissa received two telephone calls from Shaw, one

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before and one after September 11, 2001. Shaw first told Melissa that "the shit's going to hit the fan as far as the business goes" and then called to inform her that his plan needed to be postponed "because of September 11th happening." Vitale learned of these calls as they occurred. On July 5, 2002, Shaw telephoned Amy, who worked at the Academy, and the two discussed the business, including the number of children and teachers. Shaw told Amy that she should change jobs because "something[] [was] going to happen." Amy asked whether he intended to burn down the business or do something else to it, with Shaw responding "[w]ell, we'll just have to see now, won't we." After Amy told him not to talk like that because it would only get him in more trouble, Shaw responded that "it won't matter if I'm dead, now, will it?'" Shaw also told Amy he would destroy the business if he could not run it and used a serious and firm voice throughout the conversation. Amy became worried that Shaw would hurt the kids and the school and told Vitale about the conversation the following morning. Although Vitale admitted that Shaw's focus had always been on taking control of the business, when she learned of this conversation she believed Shaw might physically destroy the business through a suicide bombing during business hours. Vitale reported the telephone call to the police on July 9, and she passed the information on to Melissa, who then removed her son from the Academy. Vitale stated that she experienced fear after hearing about Shaw's first telephone call to Melissa and that she was "still very much afraid." La Mesa Police Sergeant Terence Marks knew Shaw may have been living at Saint Vincent De Paul's, a homeless shelter, but Marks did not try to arrest him, fearing Shaw

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might not be present and would flee when he learned about the visit. Thus, Marks waited until after an August 29 court hearing to arrest Shaw. A post-arrest search revealed an envelope addressed to one of Shaw's daughters containing a photocopy of a Los Angeles Times newspaper article entitled "Method Without Madness." The article addressed suicide bombings and a portion of the article referring to suicide had been highlighted. An information charged Shaw with two counts of making a criminal threat in violation of Penal Code section 422. (All undesignated statutory references are to this code.) Prior to trial, the court granted Shaw's motion to dismiss one of the counts under section 995, with the remaining count indicating that the offense occurred between July 5 and July 9, 2002. A jury found Shaw guilty on the remaining count relating to Shaw's statements to Amy and the trial court sentenced him to the upper term of three years in prison. 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

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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. (

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