Filed 8 / 4 / 22 P. v. Zinman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

J USTIN MARCUS ZINMAN

,
Defendant and Appellan t. 2d Crim. No. B 3 13 764 (Super. Ct. No

. 2021 001112 ) ( Ventura County )

J ustin Marcus Zinman appeals the judgment en tered after a jury convicted him of making criminal threats ( Pen

. Cod e , 1 § 422 ) and s talking ( § 64 6.9
, subd. ( a)) . The jury a lso found t rue allegations that appellant had a prior serious fe lony conviction that also q ualified as a st rike ( §§ 667 , sub ds. (a) (1 ), (c)(1), & (e) (1), 11 70.12
, subds. ( a) (1) & (c)( 1) )

. The t rial court sentenced
him to 11 ye ars in state prison

. Appellant contends that his

1 All statutory references are to the Penal Code.2

criminal threats conviction must be r eversed for insufficien t evidence. We a ffirm. 2

STATEMENT OF FACTS In 2017, a ppellant and Breana H. met while working at the
Kohl’s store in Simi Valley and subsequently entered int o a romantic relationship

. Following his graduat ion from college in
the summer of 201 9
, appellant began living with Breana and h er parents at their home in Simi Valley. A ft er appellant m oved in,
he became pr eoccupied with religion and obs essed with

govern ment con spira cy theories

. He to ld Breana that she liv ed in
a “matri archal” ho usehold and neede d to leave. Appellant and B reana’s relationship ended in July or August of 2019 , but they co ntinued speak ing intermittently until appellant moved away in December 2 019

. Brean a eventually told appellant she was a fraid of his beha vior and wanted no further

conta ct with him.
In August or S eptember of 2020, ap pellant sent Breana an
email to which she did not re spond. Appellant subsequently sent
Breana an Instagram message fol lowed by te xt messages and phone call s from an Idaho number. A ppellant texted that his
“next step is to call your mom” to tell her that he p lanned to marry Breana and was “a worthy husband.”
Breana did not re spond to the Ins tagram message or phone calls, but eve ntually respond ed to the texts by te lling appellant to stop texting h er and that she would call him the next day when
she was not a t work. The following morning, appellant texted: “Have fun working in the most corrupt failing, work

2 Appellant has also challenged the judgement in a petition for writ of habeas corpus, which we deny in a separate order.3

establishment. And, by the way, outside California people know this pandemic is fake . . . . Trump 2020 Landslide.”
On September 21, 2020, appellant sent Breana a text

message accusing her of having a sexual relationship with his
friend Tom . Appellant referred to Tom as a liar and alcoholic
who “beat the shit out of” his girlfriends and told Breana “[m]aybe you two are perfect for each other.” Although Breana had never met Tom in person, he had previously reached out to her about appellant. By December 2020
, Breana was receiving emails from appellant almost every day

. In a December 13 email, appellant
stated: “I had to do what I had to do to infiltrate you and your matriarchal household and family. . . . I will be returning to take

you. . . . You are a pro perty of me [ sic ]. Whether your family likes it or not, I will deal with them.

. . . I will challenge your dad

to a gentleman’s dual [ sic ] if I have to. Maybe that will wake up the man in him, too, so he can start fucking your mom properly
and chill her out.” That same day, appellant sent another email message stating he could “take care” of Breana’s grandmother,
whom he called a “witch.” Five days later, appellant sent Breanna’s mother Cheryl a text message stating that he was giving Breana “a taste of her own medicine” by subjecting her to “total manipulation” and added “I just wanted you to know the truth . . . since Breana has put me in a situation where I have to worry about having the FBI
involved. ” Cheryl forwarded the text to Breana, who subsequently reported it to the polic e

. In a December 2 2 email , appellant told Breana that incest, pedophilia and rape are federal crimes a nd add ed “I am here to save you. I am your protector. . . . You have been harmed and I4

want you to b e healed. Rape is not love. Delta Force goes to the end of the earth to save and protect the vulnerable. You can trust me. I love you Queen B.” Although Breana did not initially understand what appellant meant, she subsequently realized he was falsely accusing her father of molesting her. On December 25, appellant emailed Brean a “I know what you ’ re into. Tom has always been gay for me, that ’ s wh y he always went after the girls I get. He wants to make me jealous, so I fucked hi m because he’s a faggot .” Two days la te r, appellant sent an email w ith the subject heading “Still waiting for the FBI

. ” The email stated: “If you decide to speak with me, you will have to submit to my rule and confess just how wrong you were about me. . . . I give you the opportunity to be my queen . This is the best offer you will ever get in your entire life. Speak now or forever be denied your peace.” Breana interpreted the latter comment as a threat that he had to be with appellant “or else.”
On January 7 , 2021, appellant sent Breana an email stating “Treason against God. Here you go, my lady. Make America great again.” The message included an photograp h of a

noose accompanied by the statement “Ribbon to support the cure
for treason.” Breana understood this to mean that appellant expected her to submit to him “as he had put it in words before,
or else here is the noose. ” She subsequently sent appellant a message telling him to stop contacting and harassing her. The next day, appellant emailed a message stating that he had
“stored” her “secrets and deleted e

- mails” and that “[e]veryone
will confess.” In another email, appellant referred to Bre ana’s
father as “a pedo ” and asked if Breana loved Tom “[b]ecause I am getting ready to come take you as my wife caveman style.”5 On January 9, appellant sent Cheryl a message stating that he was going to come to her hous e, take Breana as his wife, and “fuck the shit out of her every day for the rest of [ h is ] life.” Appellant also accused Breana of having sex with her father and said he was coming to Simi Valley to “fuck the cum” of Breana’s
father “out of [ her ]

. ” In ano ther me ssage that included the insignia “Central Security Service United States of America

, ” appellant stated “[t]his is the badge I got for graduating from Berkeley at the top of my class. Surprise bitch. It happened when she was very young. This is the reason Breana has been a liar since she was a kid. . . . NSA is a signal intelligence operation. We are the best in the world a nd we have everything on everyone. If you don’t trust my authority, call the dorks at the
FBI . If I’m crazy, I will be thrown in jail for impersonating a federal intelligence officer.” That same day, appellant sent Breana a n email message with the hea ding “Coming to your house to kidnap and rape you,
bitch. ” The message stated, “ Ha

. . . . You better be ready, bitch.
Call the FBI. Tell them America intelligence is coming.” The message included a photograph of a bound nurse with a bag or
hood over her head. Breana , who is a nurse, took the message as “an immediate threat” and feared for her safety. A ppellant ’s
admi ssion of prior crimes includi ng armed robber y , coupled with
the fact that his current be havi or was “so u nhinged and unusual,” led Breana to conclude “ there ’ s no telling what he would do or what he though t he could do.” Three days later, Breana was at home with her par ents and
brother when Cheryl noticed that someone appeared to be lingering at the front door. After looking outside, Breana’s
brother stat ed “Jesus Christ, it’s [appellant].” Cheryl told6

appellant , who had driven over 800 miles from Idaho

, to leave. He did not do so. Cheryl then armed herself with a crowbar and
called 911. When appellant was arrested at the scene, a l a rge sheath knife was found attached to his belt

. At trial, Breana and Cheryl both testified that they are still afraid of appellant. In testifying in his own defense, appell ant denied ever threatening Breana or intending to cause her fear. He claimed
that his use of the words “ kidnapping ” and “ rap e” was “more a satirical play on the traditional marriage values.” He also claimed that the image of the nurse with a hood over her head was merely intended to convey that nurses “may be victims of human trafficking.”
DISCUSSION Appellant contends his c riminal threats conviction must be
reversed because the evidence is insufficient to support the jury’s finding that he willfully threatened to commit a crime against Breana involving great bodily injury or death. We are not persuaded

. “In reviewing a challenge to the sufficiency of the evidence under the due process clause of the Fourteenth Amendment to the United States Constitution and/or the due process clause of
article I

, section 15 of the California Constitution , we review the entire record in the light most favorable to the judgment to
determine whether it discloses substantial evidence

— that is, evidence that is reasonable, credible, and of solid value

— from
which a reasonable trier of fact could have found the d efendant guilty beyond a reasonable doubt.” ( People v. Cole (200 4) 33 Cal.4th 1158, 1212 .) “We presume every fact in support of the judgment the trier of fact could have reasonably deduced from
the evidence. [Citation.] If the circumstances reasonably justify7

the trier of fact ’s findings, reversal of the judgment is not warranted simply becaus e the circumstances might also reasonably be reconciled with a contrary finding.” ( People. v.
Albillar (2010) 51 Cal.4th 47, 60.) It is well settled that “‘[a]
reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’” the jury ’ s verdict.’” ( People v. Penunuri (2018) 5 Cal. 5th 126, 142 .)

“ The elements of the crime of making a criminal threat are
as follows: ‘“ (1) that the defendant ‘ willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, ’ (2) that the defendant made the threat ‘ with the specific intent that the statement .

. . is to be taken as a threat, even if there is no intent of actually carrying it out, ’ (3)
that the threat

— which may be ‘ made verbally, in writing, or by
means of an electronic communication device ’

— was ‘ on its fa ce 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) that the threat actua lly 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) that the threatened person ’ s fear was ‘ reasonabl[e] ’ under the
circumstances. ” [Citations.] ’ [Citation.]” ( In re A. G. ( 2020) 58 Cal.App.5th 647, 653

- 654 ( A.G. ) .)

“ ‘ [S]ection 422 requires that the communication must be
sufficient “ on its face and under the circumstances in which it is
made ” to constitute a criminal threat.

. . .’ [Citations.] ” ( A.G.

, supra , 58 Cal.App.5th at p. 654 .) “‘[T]he determination whether a defendant intended his words to be taken as a threat, and8

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. The parties’ history can also be considered as
one of the relevant circumstances

. [ Citations.] ’ [Citation.]” ( People v. Butler ( 200 0 ) 85 Cal.App.4th 745, 754.) Appe llant challenges only the jury’s finding on the first prong of the statute, i.e., that he willfully threatened to commit a
crime against Breana resulting in death or great bodily injury. Great bodily injury is “ ‘ bodily injury which is significant o r substantia l, not insignificant, trivial or moderate. ’ ” ( People v. Quinone z ( 2020) 46 Cal.App.5th 457, 464.) As our Supreme Court has recognized, such a showing cannot be made as to a charged offense unless the injury is substantially beyond any injury inherent in th e offense. ( People v. Escobar (1992) 3 Cal.4th 740,745

- 750.) Our Supreme Court has also held, and the jury was accordingly instruct ed , that “[r]ape , by it self, does not constitute great bodily injury.” ( See CALCRIM No. 1300 ; People

v. Caudillo (1978) 21 Cal.3d 562, 582

- 583, disapproved on another ground in Escobar , at p. 751 , fn. 5.) Appel lant concedes that he willfully threaten ed to rape and kidnap Breana, but contends the evidence is insufficient to support the find ing that he threatened to carry out either those
offense s in a manner that involved great bodily injury or death.
The evidence , when view ed in the light most favorable to the judgment , compels the opposite conclusion

. Appellant did not merely send messages in which he expressly threatened to rape and kidnap Breana

. Among other things, he sent her a photograph of a noose with the statement “Rib bon to support the9

cure for treason.” He then sent another photograph depict ing a bound nurse with a bag or hood over her hea d

. Although appellant asserts that the intended meaning of
th ese photograph s w as ambiguous, the jury was free to find
otherwise. Breana is a nur se and a noose plainly connotes a violent strangling or hanging , either of which would result in great bodily injury or death

. Breana understood th e photographs

to mean that appellant expected her to submit to him “as he had put it in words before, or else here is the noose.” Breana also testified that due to her prior history with appellant, her knowledge of his prior violent crimes, and the erratic nature of his behavior, there was “no telling what he would do.” In light of the surrounding circumstances, the jury could reasonably find that appellant willfully threatened Breana with a crime involving great bodily injury or death. ( People v. Butler

, supra , 85 Cal.App.4th at p. 754.) Appellant’s claim of insufficient evidence
thus fails.
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J. YEGAN , J.Ryan J. Wr ight , Judge Superior Court County of Ventura

______________________________

Robert L. Hernand ez , under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, S tephanie A. Mi yoshi

, and Rene
Judkiewi cz, Deputy Attorney s General, for Plaintiff and Respondent.