People v. Zinman CA2/6 ( 2022 )

Filed 8/23/22 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, 2d Crim. No. B313764
(Super. Ct. No. 2021001112)
Plaintiff and Respondent, (Ventura County)
v.
JUSTIN MARCUS ZINMAN, ORDER MODIFYING OPINION
AND DENYING REHEARING
Defendant and Appellant. (NO CHANGE IN JUDGMENT)
THE COURT:
The opinion filed in the above-entitled matter on August 4,
2022, is modified as follows:
On page 5, the first sentence of the third paragraph
beginning “Three days later” is modified to state:
Three days later, Breana’s parents were at home with her
brother when Cheryl noticed that someone appeared to be
lingering at the front door.
This modification does not change the judgment.
Appellant’s petition for rehearing is denied.
____________________________________________________________
GILBERT, P.J. YEGAN, J. PERREN, J.
Filed 8/4/22 P. v. Zinman CA2/6 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, 2d Crim. No. B313764
(Super. Ct. No. 2021001112)
Plaintiff and Respondent, (Ventura County)
v.
JUSTIN MARCUS ZINMAN,
Defendant and Appellant.
Justin Marcus Zinman appeals the judgment entered after
a jury convicted him of making criminal threats (Pen. Code,1
§ 422) and stalking (§ 646.9, subd. (a)). The jury also found true
allegations that appellant had a prior serious felony conviction
that also qualified as a strike (§§ 667, subds. (a)(1), (c)(1), &
(e)(1), 1170.12, subds. (a)(1) & (c)(1)). The trial court sentenced
him to 11 years in state prison. Appellant contends that his
1 All statutory references are to the Penal Code.
criminal threats conviction must be reversed for insufficient
evidence. We affirm.2
STATEMENT OF FACTS
In 2017, appellant and Breana H. met while working at the
Kohl’s store in Simi Valley and subsequently entered into a
romantic relationship. Following his graduation from college in
the summer of 2019, appellant began living with Breana and her
parents at their home in Simi Valley. After appellant moved in,
he became preoccupied with religion and obsessed with
government conspiracy theories. He told Breana that she lived in
a “matriarchal” household and needed to leave.
Appellant and Breana’s relationship ended in July or
August of 2019, but they continued speaking intermittently until
appellant moved away in December 2019. Breana eventually told
appellant she was afraid of his behavior and wanted no further
contact with him.
In August or September of 2020, appellant sent Breana an
email to which she did not respond. Appellant subsequently sent
Breana an Instagram message followed by text messages and
phone calls from an Idaho number. Appellant texted that his
“next step is to call your mom” to tell her that he planned to
marry Breana and was “a worthy husband.”
Breana did not respond to the Instagram message or phone
calls, but eventually responded to the texts by telling appellant to
stop texting her and that she would call him the next day when
she was not at 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.
2
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 property 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 police.
In a December 22 email, appellant told Breana that incest,
pedophilia and rape are federal crimes and added “I am here to
save you. I am your protector. . . . You have been harmed and I
3
want you to be 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 Breana “I know what you’re into. Tom has
always been gay for me, that’s why he always went after the girls
I get. He wants to make me jealous, so I fucked him because he’s
a faggot.”
Two days later, appellant sent an email with 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 photograph 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 Breana’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.”
4
On January 9, appellant sent Cheryl a message stating
that he was going to come to her house, take Breana as his wife,
and “fuck the shit out of her every day for the rest of [his] 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 another message 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 and 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 an email message
with the heading “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. Appellant’s
admission of prior crimes including armed robbery, coupled with
the fact that his current behavior was “so unhinged and
unusual,” led Breana to conclude “there’s no telling what he
would do or what he thought he could do.”
Three days later, Breana was at home with her parents and
brother when Cheryl noticed that someone appeared to be
lingering at the front door. After looking outside, Breana’s
brother stated “Jesus Christ, it’s [appellant].” Cheryl told
5
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 large
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, appellant denied ever
threatening Breana or intending to cause her fear. He claimed
that his use of the words “kidnapping” and “rape” 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 criminal 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 defendant
guilty beyond a reasonable doubt.” (People v. Cole (2004) 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 justify
6
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.) 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 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 (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, and
7
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 (2000) 85 Cal.App.4th 745, 754.)
Appellant 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 or
substantial, not insignificant, trivial or moderate.’” (People v.
Quinonez (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 the offense. (People v. Escobar (1992) 3 Cal.4th
740,745-750.) Our Supreme Court has also held, and the jury
was accordingly instructed, that “[r]ape, by itself, 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.)
Appellant concedes that he willfully threatened to rape and
kidnap Breana, but contends the evidence is insufficient to
support the finding that he threatened to carry out either those
offenses in a manner that involved great bodily injury or death.
The evidence, when viewed 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 “Ribbon to support the
8
cure for treason.” He then sent another photograph depicting a
bound nurse with a bag or hood over her head.
Although appellant asserts that the intended meaning of
these photographs was ambiguous, the jury was free to find
otherwise. Breana is a nurse and a noose plainly connotes a
violent strangling or hanging, either of which would result in
great bodily injury or death. Breana understood the 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.
9
Ryan J. Wright, Judge
Superior Court County of Ventura
______________________________
Robert L. Hernandez, 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, Stephanie A. Miyoshi, and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and
Respondent.