P. v. Shaw

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

-- 1 of 21 --

2
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

-- 2 of 21 --

3
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

-- 3 of 21 --

4
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

-- 4 of 21 --

5
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. (§ 422.)
2. Criminal Threat
Because making a criminal threat implicates First Amendment interests, our high
court recently concluded that reviewing courts must apply the independent review
standard when examining a trier of fact's determination that the communication at issue
constituted a criminal threat. (In re George T. (2004) 33 Cal.4th 620, 632.) Under this
standard of review, we examine the statements at issue and the circumstances under
which they were made to determine whether the statements constituted a criminal threat
entitled to First Amendment protection. (Id. at p. 631.) In making this determination we
independently examine the entire record, but defer to the trier of fact's credibility
determinations. (Id. at p. 634.)
A purported threat must be examined on its face, in context and in light of the
surrounding circumstances to determine if it conveyed the required gravity of purpose
and immediate prospect of execution. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.)
Relevant circumstances include the prior history of disagreements between the
perpetrator of the threat and the victim (id. at p. 1138), with the inquiry focusing on the
effect the words had on the victim, rather than the precise words uttered. (People v.
Stanfield (1995) 32 Cal.App.4th 1152, 1158.) Section 422 does not require an immediate
ability to carry out a threat (People v. Lopez (1999) 74 Cal.App.4th 675, 679-680) and
even an ambiguous statement that does not communicate a precise time or manner of

-- 5 of 21 --

6
execution may violate section 422 when it is viewed in light of the surrounding
circumstances. (People v. Butler (2000) 85 Cal.App.4th 745, 752-753.)
After examining Shaw's statements and the surrounding circumstances under the
independent review standard, we conclude that the statements at issue constituted a
criminal threat and were not entitled to First Amendment protection because they
threatened to commit a crime that would result in death or great bodily harm and there
existed an immediate prospect of execution.
On July 5, Shaw telephoned Amy at home and in a firm and serious voice that was
different from his normal tone, told her to stop working at the Academy within 60 days
because something was going to happen. When Amy inquired whether he intended to do
something to the business, Shaw responded that "we'll just have to see now, won't we"
and implied that he would not get in trouble because he would be dead. Although Amy
admitted that Shaw threatened to destroy the business "pretty much every time" they
discussed it, she had had no contact with Shaw for about a year prior to this conversation
and believed Shaw intended to physically destroy the business. Based on Shaw's
unequivocal comment to Amy that "something[] [was] going to happen," Vitale believed
that Shaw would follow though with a suicide bombing during business hours.
Vitale's conclusion that Shaw threatened to physically destroy her and the business
was not unreasonable based on her prior experiences with him. (In re Ricky T., supra, 87
Cal.App.4th at p. 1138.) Vitale had a lengthy history of problems with Shaw relating to
her business; among other things, he interfered with its bank accounts, repeatedly drove
past the business and was detained one evening by police on the business premises after

-- 6 of 21 --

7
trying to enter the building without keys. Vitale had also previously received a Los
Angeles Times newspaper article about suicide bombings at small businesses and
believed Shaw had sent the article because he read this newspaper and because she had
had no trouble with anyone, nor had anyone else ever threatened her business. That
Shaw possessed an envelope addressed to his daughter containing a photocopy of a Los
Angeles Times newspaper article about suicide and suicide bombings when police
arrested him provides further support for the reasonableness of Vitale's beliefs.
Based on Shaw's language, the parties' background and the context of Shaw's
statement, we conclude that Shaw's statement was a criminal threat that was not protected
by the First Amendment.
3. Remaining Elements
A. Specific Intent
Because we conclude that the statements constituted a criminal threat, we must
evaluate the remaining elements of section 422 under the substantial evidence standard and
review the whole record in the light most favorable to the judgment to determine whether it
discloses substantial evidence (i.e., evidence that is credible and of solid value), from which
a rational trier of fact could find beyond a reasonable doubt that the accused committed the
offense. (People v. Johnson (1980) 26 Cal.3d 557, 578.) It is not our function to reweigh
the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206) and reversal is not warranted
merely because the circumstances might also be reasonably reconciled with a contrary
finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.) With these principles in mind, we
turn to Shaw's remaining attack on the sufficiency of the evidence.

-- 7 of 21 --

8
Section 422 does not require that a threat be communicated directly to the victim
and a defendant may be found liable even if the threat was made through an intermediary;
however, it must be shown that the defendant specifically intended that the threat be
conveyed to the victim. (In re David L. (1991) 234 Cal.App.3d 1655, 1659.) Such
specific intent can be inferred from the circumstances. (Ibid.) Here, Shaw had reason to
believe that his daughter would tell her mother about the threat based on the fact Amy
was 16-years old and lived with Vitale, who owned the business. Under these
circumstances the jury could reasonably conclude that Shaw specifically intended to
convey the threat to Vitale.
B. Sustained and Reasonable Fear
A necessary element of a criminal threat is sustained fear, meaning fear that is both
reasonable and real. (People v. Ortiz (2002) 101 Cal.App.4th 410, 417.) Fear is
"sustained" if it continues for "a period of time that extends beyond what is momentary,
fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Here, Vitale
testified that she feared Shaw would commit a suicide bombing during business hours
because he warned Amy to find another job within 60 days. Further, Vitale contacted the
police a few days later. Her delay in contacting police was not unreasonable in light of the
60-day execution deadline and it did not vitiate the fear she immediately experienced and
continued to experience as a result of Shaw's statements to Amy.
The Attorney General argues that Amy was also a victim and we should consider her
fear in assessing the sufficiency of the evidence, but the record does not support this
assertion. After the trial court dismissed one of the counts, the People specified that one

-- 8 of 21 --

9
count pertained to Amy and the other to Vitale. While it was initially unclear which count
remained, at trial the prosecutor made clear that Vitale was the victim. (See section IV,
infra.)
II. Alleged Evidentiary Error
1. General Legal Principles
Relevant evidence is identified as "evidence relevant to the credibility of a
witness . . . having any tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action." (Evid. Code, § 210.) However, the
trial court has discretion to exclude relevant evidence if its probative value is
substantially outweighed by the probability that its admission will necessitate undue
consumption of time, confuse the issues, or mislead the jury. (Evid. Code, § 352, subd.
(b); People v. Callahan (1999) 74 Cal.App.4th 356, 366-367.)
Although evidence of other crimes or misconduct is inadmissible when it is
offered to show that a defendant had the criminal propensity to commit the charged crime
(Evid. Code, § 1101, subd. (a)), such evidence is admissible when offered to prove some
fact (such as motive, opportunity, intent) "other than [the defendant's] disposition to
commit such [crime or bad act]. (Evid. Code, § 1101, subd. (b).) However, even if the
other crimes' evidence is relevant to prove one of the facts specified in Evidence Code
section 1101, subdivision (b), it must also satisfy the admissibility requirements of
Evidence Code section 352. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.)
Where a defendant challenges the relevance and admission of evidence under
Evidence Code sections 352 and 1101, we review the trial court's rulings under the abuse

-- 9 of 21 --

10
of discretion standard (People v. Cole (2004) 33 Cal.4th 1158, 1195) and its decision will
not be disturbed on appeal absent a showing that it exercised its discretion in an arbitrary
manner resulting in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8
Cal.4th 1060, 1124-1125.)
2. Evidence of Prior Bad Acts
During trial Vitale described an incident that occurred in April 1999, where she was
home speaking on the telephone to Melissa when Shaw picked up the extension in another
room, accused Melissa of stealing the family car and threatened to call the police. As
Vitale questioned Melissa about what was happening, Shaw entered the room where Vitale
was on the telephone, tried to pull the telephone away from her and ultimately yanked the
cord out of the wall. As that happened, the police arrived because Vitale had previously
called them. The incident resulted in Shaw's arrest and conviction on an unspecified
charge. Vitale obtained a permanent restraining order against Shaw soon after the incident.
The trial court admitted this testimony as an act of domestic violence under
Evidence Code section 1109. Shaw contends this testimony related to an unspecified arrest
for property damage, not an act of domestic violence, and the incident was inadmissible
under this statute. He also contends the incident was inadmissible evidence of a prior bad
act and that the trial court failed to consider the prejudicial nature of the testimony.
Domestic violence includes abuse committed against a spouse and abuse is
defined as the intentional or reckless "causing or attempting to cause bodily injury, or
placing another person in reasonable apprehension of imminent serious bodily
injury . . . ." (§ 13700, subds. (a) & (b).) Here, police arrested Shaw for an unspecified

-- 10 of 21 --

11
offense related to an argument with Vitale when he pulled a telephone cord out of the
wall. Vitale admitted under cross-examination that Shaw did not physically touch her;
thus, Shaw did not cause or attempt to cause any bodily injury, nor did Vitale ever
indicate that Shaw put her in reasonable apprehension of imminent serious bodily injury
when he pulled the telephone cord from the wall. This incident did not constitute an act
of domestic violence as defined by section 13700 and was therefore inadmissible under
Evidence Code section 1109.
The incident, however, was admissible under Evidence Code section 1101, not as
evidence of character, but as evidence of Shaw's intent to intimidate and frighten Vitale.
To be admissible to show intent, "the [prior] misconduct and the charged offense [need
only be] sufficiently similar to support the inference" that Shaw "'probably harbor[ed] the
same intent in each instance . . . .'" (People v. Ewoldt, supra, 7 Cal.4th at p. 402, quoting
People v. Robbins (1988) 45 Cal.3d 867, 879) namely to intimidate Vitale. In the current
matter, Shaw was charged with making a criminal threat in violation of section 422, which
required proof of his intent to place Vitale in fear for her safety or that of her family. The
trial court found that testimony of the telephone cord pulling incident showed the
"obsessive nature" of Shaw's conduct, that it created the impression of a threat and was
therefore, sufficiently similar to the charged offense to warrant its admissibility.
Further, evidence tending to establish prior quarrels between the defendant and his
victim "and the making of threats by the former is properly admitted . . . to show the
motive and state of mind of the defendant . . . ." (People v. Linkenauger (1995) 32
Cal.App.4th 1603, 1612, quoting People v. Cartier (1960) 54 Cal.2d 300, 311.) Thus,

-- 11 of 21 --

12
this incident and Shaw's general pattern of intimidating behavior toward Vitale were
relevant on the issue of his intent to threaten her in the present matter and were
admissible under subdivision (b) of Evidence Code section 1101.
Additionally, admission of this testimony was not unduly prejudicial because it
was highly probative of the nature of Shaw's and Vitale's relationship and provided the
jury with necessary background information. Jurors could reasonably interpret Shaw's
acts of trying to pull the telephone away from Vitale and then ripping the cord out of the
wall as threatening behavior. The testimony did not consume an undue amount of time
and was not inflammatory. In fact, when ruling on an in limine motion, the trial court
recognized the possible prejudicial effect of the evidence by instructing the prosecutor
that Vitale would not be allowed to present the details of the incident. We cannot
conclude that the trial court prejudicially abused its discretion in admitting this testimony.
Even assuming the trial court erred in admitting this evidence, we find no
prejudice because there was no reasonable probability that a result more favorable to
Shaw would have been reached in the absence of the alleged error. (People v. Watson
(1956) 46 Cal.2d 818, 836.) The testimony was brief and did not counteract the evidence
showing Shaw was set on intimidating Vitale and her continued operation of the business.
3. Alleged Irrelevant Evidence
Shaw argues the trial court erroneously admitted evidence of the Los Angeles
Times suicide bombing article Vitale received in the mail because it was prejudicial and
there was no proof he sent the article. We disagree because the trial court properly
allowed the jury to decide whether Shaw had sent the article, and it was reasonable for

-- 12 of 21 --

13
the jury to so conclude because when he was arrested, he possessed a second article from
the same source and on the same subject in an envelope addressed to his daughter.
Moreover, the letter was relevant to show Shaw's intent because it was one in a series of
acts between 1999 and July 2002 designed to intimidate and frighten Vitale. The letter
caused Vitale to fear that because Shaw had been unsuccessful in taking control of the
business, he would carry through his verbal threat with a bombing. In fact, Shaw told
Amy that if he could not have the business, then he would "destroy it." Therefore,
contrary to Shaw's contention, the article was more probative than prejudicial as it
revealed his continuing obsession with the business and led credence to his threat to
destroy it. Consequently, the trial court did not abuse its discretion in admitting the
article as evidence of Shaw's intent.
III. Alleged Prosecutorial Misconduct
Prosecutorial misconduct that "'so infect[s] the trial with unfairness'" may render the
resulting conviction a denial of federal due process. (People v. Valdez (2004) 32 Cal.4th
73, 122, quoting Darden v. Wainwright (1986) 477 U.S. 168, 181.) However, conduct that
does not render a criminal trial fundamentally unfair violates a defendant's state law due
process rights only if the prosecutor used deceptive or reprehensible methods to persuade
the jury. (People v. Earp (1999) 20 Cal.4th 826, 858.) When, as here, the claim focuses on
comments made by the prosecutor before the jury, the question is whether there is a
reasonable likelihood the jury construed or applied any of the complained-of remarks in an
objectionable fashion. (People v. Ayala (2000) 23 Cal.4th 225, 283-284.)

-- 13 of 21 --

14
Shaw contends the prosecutor committed misconduct by repeatedly mentioning
the date September 11, 2001, when questioning Vitale and Melissa about his telephone
calls to Melissa. He also contends the prosecutor misstated the law during opening
argument and improperly questioned Amy. However, Shaw waived any objection to this
alleged misconduct because he failed to object or ask for a curative instruction.
Assuming the prosecutor's questions and statement were improper, a curative instruction
could have mitigated any prejudice. (People v. Hill (1998) 17 Cal.4th 800, 820.)
Shaw also argues that his counsel provided ineffective assistance based on this
failure to object; as such, we address his misconduct claims on their merits and conclude
they lack merit. Although Shaw contends that the repeated references to September 11
were inflammatory and irrelevant, Melissa used this date as a reference point to address
the time period of the two telephone calls in her written statement to police. The
prosecutor adopted this reference point during his questioning and never mentioned the
tragic events of that date. Under these circumstances we will not assume that the jury
interpreted the mention of that day to be anything more than a date reference.
Similarly, Shaw contends the prosecutor committed misconduct by eliciting Amy's
testimony that she attended Santana High School and requests judicial notice of a
newspaper article and one of our unpublished opinions addressing a well publicized
shooting that occurred at this high school in March 2001. (Evid. Code, § 452, subds.
(d)(1) & (g).) Amy stated that she attended Santana High School in response to the
prosecutor's foundational question about where she went to school. There was nothing
improper about eliciting this response. Later in her testimony Amy expressed concern

-- 14 of 21 --

15
that Shaw intended to hurt the children at the Academy and the prosecutor again asked if
she attended Santana High School and whether she was afraid Shaw would hurt people at
the Academy. Although the prosecutor's second question appears to be a veiled reference
to the shooting that occurred at Santana High School, she never mentioned the shooting
and thus this question did not rise to the level of deceptive or reprehensible conduct.
(People v. Earp, supra, 20 Cal.4th at p. 858.)
During opening comments the prosecutor told the jury to ignore the legal
"gobbledygook" and decide whether Shaw threatened to commit a crime. The prosecutor
then stated that although Shaw did not "strap a bomb to [his] stomach" and walk into the
Academy, he made veiled threats to do something similar. Although defense counsel did
not object to these statements, Shaw now argues that the evidence did not support the
inflammatory image and the prosecutor misstated the law.
Even assuming the prosecutor misstated the law, the court had already instructed the
jurors that they must follow its instructions concerning the law and not anything said by
counsel. We presume the jury followed the court's instructions. (People v. Holt (1997) 15
Cal.4th 619, 662.) Moreover, the evidence supported the bomb comment because Shaw
possessed a newspaper article about suicide bombings when the police arrested him.
Finally, during rebuttal argument the prosecutor argued that past physical violence
is not an element of the crime and he questioned defense counsel's suggestion that Shaw
could not be convicted until "[Shaw] blows the place up" stating: "And then when we
have little body parts flying all over the county and the City of La Mesa, then we say 'ah-
hah, I bet he meant for her to take that as a threat. . . .' It's before the threat is carried out.

-- 15 of 21 --

16
We cannot live in our nation and not realize what happens when people make threats and
those threats are ignored. [¶] People make threats every day who've never harmed
anyone before. . . . [A]nd you just never know whether they're going to carry it out, if
they're going to bring that gun to school. You just never know, so you've got to look at
the circumstances."
Defense counsel promptly objected to this argument as inflammatory and the trial
court cut off the prosecutor, admonishing that "[w]e've all been through 9-11. We've all
experienced the issues of the world as they are, but we need to concentrate on this case,
what was done, what was intended." Thus, the trial court addressed the prosecutor's
potentially misleading argument and we presume the jury followed the court's instruction
to focus on the instant case, thus curing any prejudice from the claimed misconduct.
(People v. Ryan (1981) 116 Cal.App.3d 168, 184.)
After hearing this admonishment, the prosecutor clarified that threats need to be
taken seriously, but he was not suggesting that Shaw was "going to go into Santana High
[School] or anything like that." While this continued allusion to the Santana High School
shooting was arguably inappropriate, the prosecutor made it when the court's
admonishment was fresh in the jurors' minds and in the context of explaining his prior
argument. Under these circumstances we find no due process violation and also conclude
it was not reasonably probable the jury construed the comment in an objectionable
fashion. (People v. Ayala, supra, 23 Cal.4th at pp. 283-284.)

-- 16 of 21 --

17
In summary, Shaw's allegations do not constitute a cognizable claim of prosecutorial
misconduct. Because we find no prejudice on this record, Shaw's claim of ineffective
assistance of counsel for failure to object to some of the asserted misconduct fails.
IV. Failure to Give a Unanimity Instruction
When the evidence shows more than one unlawful act that could support a single
charged offense, a defendant's constitutional right to a unanimous jury verdict requires that
either the prosecution elect which act to rely upon or the trial court sua sponte give a
unanimity instruction telling the jurors they must unanimously agree which act constituted
the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity
instruction is designed to eliminate the danger that the defendant will be convicted even
though there is no single offense that all jurors agree the defendant committed. (Ibid.)
Where a unanimity instruction is required but not given in a particular case, we review
such error under the harmless beyond a reasonable doubt standard. (Id. at p. 1536; but see
People v. Matute (2002) 103 Cal.App.4th 1437, 1448-1449 [split of authority in California
as to proper standard for failure to give unanimity instruction].)
Shaw contends the trial court committed reversible error by failing to instruct sua
sponte with CALJIC No. 17.01, which would have required the jury to unanimously
agree on which act constituted the criminal threat. He asserts that the jury could have
construed four acts as being a criminal threat, to wit, the newspaper article received by
Vitale, his two telephone calls to Melissa and his telephone call to Amy about destroying
the business. We reject this assertion.

-- 17 of 21 --

18
Although the prosecutor did not use the words of CALJIC No. 4.72 in making his
election as to which of the four acts constituted the criminal threat, he clearly identified the
telephone call to Amy as the act for which the conviction was sought when he stated during
closing argument that Shaw's comment "I'm going to destroy the business" constituted the
criminal threat. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455 [prosecutor's jury
summation elected conduct that constituted charged offense].) The prosecutor focused on
this comment throughout his argument and only mentioned the newspaper article that
Vitale received in the mail to stress the importance of looking at the "big picture" and to
demonstrate that Shaw's statement about "destroying" the business related to a suicide
bombing. Defense counsel reiterated this point during closing argument, saying "You're
being asked to decide if, on July 5th, 2002, [Shaw] did, in fact, commit the crime." Under
these circumstances, a unanimity instruction was not required.
Shaw also contends a unanimity instruction was necessary because Amy and
Vitale were both victims of the July 5 telephone call and the jury needed to agree which
victim was placed in "sustained fear." We reject this contention because the prosecutor
argued that Shaw intended for Vitale to believe that Shaw had threatened the Academy
and was too much of a coward to threaten Vitale directly, so he made indirect threats.
The prosecutor also reviewed the evidence showing that Vitale took the July 5 comment
as a threat to physically destroy the Academy and she was still scared. Thus, the
prosecutor made it clear that Vitale was the victim. Defense counsel recognized this by
arguing that any fear Vitale experienced from the July 5 telephone call was unreasonable.

-- 18 of 21 --

19
Under these circumstances, there is no possibility that the jury could have divided on
which individual constituted the victim.
V. There Was No Cumulative Error
Shaw contends the cumulative effect of the court's alleged errors deprived him of a
fair trial. We have identified only one matter that is even arguable error, namely, Vitale's
testimony regarding the telephone-pulling incident, but concluded such claimed error was
harmless. There was no cumulative error in this case.
VI. Blakely Error
Shaw contends that the trial court's imposition of the upper term based on its
findings of aggravating factors violated his Sixth Amendment right to a jury trial. Under
Blakely, a jury trial is required to determine beyond a reasonable doubt any fact that "the
law makes essential to the punishment," other than the fact of a defendant's prior
conviction. (Blakely, supra, 124 S.Ct. at p. 2537 & fn. 5.)
The application of Blakely to the imposition of the upper term is currently under
review by the California Supreme Court in People v. Towne (review granted July 14,
2004, S125677) and People v. Black (review granted July 28, 2004, S126182). The
appellate courts in our state are divided on this issue and a number of courts, starting with
this court in People v. George (review granted December 15, 2004, S128931), have
concluded that Blakely applies to the California determinate sentencing scheme because
the maximum penalty the court can impose under California law without making
additional factual findings is the middle term. (But see People v. Wagener (2004) 123
Cal.App.4th 424, 429-437, petition for review pending, petition filed November 29,

-- 19 of 21 --

20
2004; People v. Picado (2004) 123 Cal.App.4th 1216, 1243, petition for review pending,
petition filed December 9, 2004.)
As a threshold matter, we reject the attorney general's argument that Shaw
forfeited the Blakely issue by failing to raise it below where, as here, Blakely was decided
after the sentencing hearing. (See People v. Vera (1997) 15 Cal.4th 269, 276-277
[constitutional right to jury trial may be raised for the first time on appeal].)
On the merits, the trial court imposed the upper term based on five aggravating
factors, to wit, that (1) he still posed a danger to the victim; (2) he took advantage of a
position of trust; (3) he previously engaged in violent conduct; (4) his prior performance
on probation was poor; and (5) his prior convictions were numerous and increasing in
seriousness. We cannot conclude a jury would have made the requisite findings to
support the first four factors had the matter been submitted to them, or that the error was
harmless under either the traditional harmless error standard or the constitutional
harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24. Although the
latter factor relating to the increasing seriousness of Shaw's prior convictions arguably
fails within the exception for prior convictions (Almendarez-Torres v. United States
(1998) 523 U.S. 224, 246), we cannot conclude that the trial court would have imposed
the upper term based on this factor standing alone because it also noted that Shaw had no
prior felony convictions and considered this to be an important mitigating factor.
Because we cannot conclude the error in this case was harmless under either
standard, the sentence must be vacated and the case remanded to the superior court to
conduct a new sentencing hearing

-- 20 of 21 --

21
DISPOSITION
The judgment is affirmed as to the conviction. The judgment is reversed as to the
sentence and the case is remanded to the superior court to conduct a new sentencing
hearing.
McINTYRE, J.
I CONCUR:
HUFFMAN, J.
BENKE, Acting P.J., concurring and dissenting.
For the reasons expressed in this court's opinion in People v. Wagener (2004) 123
Cal.App.4th 424, I would conclude the sentencing here was proper. If our Supreme Court
concludes otherwise, appellant may obtain relief by way of writ of habeas corpus.
BENKE, Acting P.J.

-- 21 of 21 --