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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 CLARKE,

 Defendant and Appellant.

2d Crim. No. B319821

(Super. Ct. No. 21F-08938)

(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 

prosecutorial misconduct. We affirm.2

1 Unless otherwise noted, all statutory references are to the 

Penal Code.

2 Appellant also filed an in pro. per. petition for writ of 

habeas corpus claiming that the trial court erred in denying his 
2

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 

appellant from a recent prior occasion when he had been asked to 

leave the bar due to “aggressive and . . . inappropriate behavior.” 

After Wandzel 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 approached appellant and told 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 and wanted “to make sure that he didn’t 

try to come back in.” 

About three minutes later, appellant returned and told 

Wandzel he wanted to go inside to retrieve his phone. Wandzel 

responded 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 his 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 8.387(b)(2)(B).)
3

appellant became “more aggressive” and told Wandzel “I have 

something for you.”

Wandzel told appellant to leave. Appellant 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, 

appellant asked Wandzel “[h]ave you ever been set 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 and 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 of the Evidence

Appellant contends the evidence is insufficient to support 

his conviction. We disagree.

In reviewing claims of insufficient 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 defendant 

guilty beyond a reasonable doubt.” (People v. Cole (2004) 33 
4

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 justify 

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 

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 criminal threats are

‘“(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, . . . 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 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 fourth

prong of the statute, i.e., that his threat to set Wandzel on fire 
5

actually caused Wandzel to be in sustained fear for his safety. 

“Sustained fear” is defined as “a period of time that is more than 

momentary, 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 (2001) 90 Cal.App.4th 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 

from 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. 

Appellant’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 has been found sufficient to 

support a finding of sustained fear under section 422. (See, 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. (2001) 87 Cal.App.4th 1132, 1138, 

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

is also plainly inapposite. Here, appellant threatened to set

Wandzel on fire and subsequently took steps that led Wandzel to 

reasonably believe that he was actually going to do 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 

asking 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 leading questions as 

provided in Evidence Code section 767.

Appellant’s trial attorney did not object to either of the 

questions that are now challenged on appeal, nor did he request a 

curative admonition. Appellant’s claim of prosecutorial 

misconduct is thus forfeited. (People v. Cowan (2017) 8

Cal.App.5th 1152, 1161.) We are not persuaded by appellant’s 

assertions that an objection would have been futile and that any 

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 process. 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 jury.’ [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, ‘“leading 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 special circumstances are present. [Citation.]” (Id. at 

p. 402.)

Appellant fails to demonstrate that either of the

prosecutor’s challenged questions were leading. Although the 

question asking whether Wandzel was “scared” called for a “yes 

or no” answer, it did not unduly suggest a “yes” rather than a 

“no.” In addition, the question was preceded by Wandzel’s 

testimony that he believed he needed to physically defend himself

after appellant made the threat against 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 appellant’s threat—is independently 

sufficient to support the jury’s finding that Wandzel suffered 

sustained fear as a result of the threat. Appellant’s claim of 
8

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 Rooyen 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 Respondent.