Filed 5 / 23 / 23 P. v. Clarke 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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.

KELLEN JOHN CL ARKE

,
Defendant and Appellant. 2d Crim. No. B 31 98 2 1 (Super. Ct. No. 21F

- 089 38 ) ( San Luis Obispo County)

Kellen John Clarke appeals the judgment entered after a jury convicted him of making criminal threats ( Pen . Code, 1 § 422, subd. (a))

. The trial court sentenced him to two years in state prison

. Appellant raises claims of insufficient evidence and prosecut orial misconduct

. We affirm. 2

1 Unless otherwise noted, a ll statutory references are to the Penal Code.

2 A ppellant also filed an in pro. per. petition for writ of habeas corpus claiming that the trial court erred in denying his2 FACTS AND PROCEDURAL HISTORY On the night of December 16, 2021, appellant went to a bar in San Luis Obispo. Bar employee Daniel Wandzel recognized

a ppellant from a recent prior occasion when he had been asked to
leave the bar due to “aggressive and . . . inappropriate behavior.”
After W a ndzel sold appellant a beer , bar employee Chris Woloch saw appellant “ very rapid[ly] . . . walking around the bar.” Appellant was playing pool when another bar patron told
Wandzel and Woloch that appellant was acting aggressively and
had called the patron’s partner “a slut or a skank or something .” Woloch approach ed appellant and t old him to leave

. As appellant was walking out of the bar, Wandzel could tell he was upset and saw him “throw[] a couple of looks back over his shoulder that definitely caused some concern.” Wandzel told Woloch he was going to “go stand out on the patio and keep an eye on that entrance for a couple of minutes” because he “ had an uneasy feeling about ” appellant an d wanted “ to make sure that he didn ’ t try to come back in. ”
A bout three minutes later, a ppellant returned and told
Wandzel he wanted to go inside to retrieve his phone. Wandzel

re sponded that appellant was not welcome inside the bar and
offered to look for his phone. Appellant became aggressive, tried to enter the bar, and said he was going to call the police. Wandzel asked appellant how he was going to call the police without his phone. While keeping one hand in h is pocket,

motion to dismiss under section 1118.1 and that the verdict was rendered in violation of his constitutional rights . We summarily deny that petition in a separate order filed the same day as this opinion

. (See Cal. Rules of Court, rule 8.3 87(b)(2)(B).)3

appellant became “more aggressive” and told Wandzel “I have something for you.” Wandzel told appellant to leave

. A ppellant walked back to
the parking lot and began rummaging through his car

. Wandzel subsequently saw appellant walking back toward the bar with a gasoline can in his hand. While making direct eye contact,

a ppellant aske d Wandzel “[h]ave you ever been s et on fire before” then added, “I’m going to get some gas and I’m going to burn you
and this bar down. ” Wandzel was scared and took the threat seriously.
After appellant began walking toward a nearby gas station, Wandzel told Woloch what had happened an d called 911.
Wandzel watched appellant fill up the gas can with gasoline and begin walking back toward the bar. Woloch noticed that Wandzel
was afraid. Sheriff’s deputies arrived as appellant was walking
back toward the bar. One of the deputies opened that gas can
and observed that it contained gasoline. Wandzel testified that
he “was in fear of what [appellant] was capable of doing from the second he walked by with the gas can and

. . . felt at ease when
the officers arrived .”
DISCUSSION

Sufficiency o

f t he Evidence Appellant contends the evidence is insufficient to support
his conviction. We disagree. In reviewing c laims of insufficie nt evidence, “ 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 def endant guilty beyond a reasonable doubt.” ( People v. Cole (2004) 334

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 ju stify
the trier of fact ’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” ( People v.
Albillar (2010) 51 Cal.4th 47, 60

. ) “‘ A reversal for insufficient
evid ence “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 C al.5th 126, 142. )

“ The elements of the crime of making criminal threat s ar e

‘ “ (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 face and under the circumstances in which it [was] made, .

. . s o 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 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) 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

. ) Appellant challenges only the jury ’s finding on the f ourth prong of the statute, i.e., that h is threat to set Wandzel on fire5

actually cause d Wandzel to be in sustained fear for his safety. “S ustained fear ” is defined as “ a period of time that is more than

momentar y, fleeting, or transitory.” ( CALCRIM No. 1300

, italics
omitted ; People v. Brugman (2021) 62 Cal.App.5th 608, 634 .) The
trier of fact may consider all relevant circumstances, including
the defendant’s actions after making the threat , in determining whether the victim was placed in sustained fear as provided in
section 422. (

People v. Solis (20 0 1) 90 Cal. App.4 th 1002, 1013.)
Wandzel testified that he was placed in fear by appellant’s
threat to “burn [him] and [the] bar down” and that his fear lasted
f rom the time appellant first walked by him with the gas can
until the deputies arrived several minutes later. Woloch also
testified that Wandzel appeared to be afraid as a result of appellant’s threat. This evidence is plainly sufficient to support the finding that Wandzel’s fear was more than momentary, fleeting, or transitory, such that appellant’s threat caused him to be in sustained fear for his safety.
A ppellant ’s assertions to the contrary essentially disregard the controlling standard of review, which compels us to view the evidence in the light most favorable to the judgment. ( People v.
Cole

, supra , 33 Cal.4th at p. 1212 .) Appellant also refers us to
other cases in which the evidence ha s been found sufficient to support a finding of sustained fear under section 422

. ( S ee, e.g., People v. Mendoza (1997) 59 Cal.App.4th 1333; People v. Ortiz (2002) 101 Cal.App.4th 410

. ) But none of those cases purport to
establish a minimum threshold for the amount of time that must pass or the factual circumstances that must exist for a jury to
find that a victim was placed in sustained fear as contemplated
in section 422. In re Ricky T. (2 001) 87 Cal.App.4th 1132

, 1138
, in which the appellant had merely threatened to “get” a teacher,6

is also plainly inapposite. Here, a ppellant threatened to set Wandzel on fire and subsequently took steps that le d Wandzel to reasonably believe that he was actually going to d o so. Appellant’s claim that the evidence is insufficient to support his
conviction thus fails.

Prosecutorial Misconduct For the first time on appeal, appellant also contends that the prosecutor committed misconduct by asking Wandzel whether he was “scared” as result of appellant’s threat , and by later
ask ing him to “put a time frame on when [he] truly started feeling afraid to when maybe that fear started to subside.” He
claims that both inquiries were improper lea ding questions as provided in Evidence Code section 767. Appellant’s trial attorney did not object to either of the questio ns that are now challenged on appeal , nor did he request a
curative admonition . A p pellant’s claim of prosecutorial
misconduct is th us forfeited. ( People v

. Cowan ( 201 7 ) 8
Cal. App.5 th 11 52 , 1 161 .) We are not persuaded by a ppellant’s
assertions that a n objection would have been futile and tha t an y harm would not have been cured by an admonition

. In any event, the claim fails. “ ‘ A prosecutor’s conduct
violates the Fourteenth Amendment to the federal Constitution
when it infects the trial with such unfairness as to make the
conviction a denial of due pro cess. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jur y. ’ [Citation.] ” ( People v. Gonzalez (2021) 12 Cal.5th 367, 401.)7 “ As a general matter, a ‘ leading question may not be asked
of a witness on direct or redirect examination. ’ [Citation.] ‘“ ‘ A

“ leading question ” is a question that suggests to the witness the answer that the examining party desires. ’ [Citation.] Questions calling for a ‘ yes ’ or ‘ no ’ answer are not leading unless they are unduly suggestive under the circumstances.” ’ [Citation.] However, ‘“ leadi ng questions are not always impermissible on
direct examination. ” ’ [Citation.] The Evidence Code permits
their use ‘ under special circumstances where the interests of justice otherwise require. ’ [Citation.] ” ( People v. Gonzalez

, supra , 12 Cal.5th at p. 401.) For example, leading questions are permissible when they “ ‘ serve[] “ to stimulate or revive [the
witness ’ s] recollection .”’ [Citation.]” ( Id. at. pp. 401

- 402.) Moreover, “[t] rial courts have broad discretion to decide when such speci al circumstances are present. [Citation.]” ( Id. at

p. 402.) Appellant fails to demonstrate that either of the prosecutor’s challenged question s were leading. Although the question asking whether Wandzel was “scared” called for a “yes

or no” answer, it did not undu ly suggest a “yes” rather than a
“no.” In addition, the question was pre ceded by Wandzel’s testimony that he believed he needed to physically defend himself after appellant made the threat agai nst him. And the question asking Wandzel to “put a time frame on” the duration of his fear

was not leading at all. In any event

, other evidence

— which includes Woloch’s testimony that Wandzel appeared to suffer prolonged fear as result of appellan t’s threat

— is independently sufficient to support the jury’s finding that Wandzel suffered
sustained fear as a result of the threat. A ppellant’s claim of8

prosecutorial misconduct thus fails for lack of prejudice. ( See People v. Friend (2009) 47 Cal.4th 1, 36.)
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED.

CODY , J.

We concur:

GILBERT , P. J.

YEGAN , J.9 Craig Van Roo yen Judge Superior Court County of San Luis Obispo

______________________________

Patricia S. Snyder

, 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, Wyatt E. Bloomfield , Supervising Deputy Attorney General, and Lindsay Boyd , Deputy Attorney General, for Plaintiff and Respond ent.