The People v. Franz

CourtCalifornia Court of Appeals
Writing for the CourtAPPEAL from a judgment of the Superior Court of El Dorado County. Thomas A. Smith
Citation106 Cal.Rptr.2d 773,88 Cal.App.4th 1426
Parties(Cal.App. 3 Dist. 2001) THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RONALD FRANZ, Defendant and Appellant. C034462 THIRD APPELLATE DISTRICT (El Dorado) Filed
Decision Date10 May 2001

106 Cal.Rptr.2d 773 (Cal.App. 3 Dist. 2001)
THE PEOPLE, Plaintiff and Respondent,
v.
ANTHONY RONALD FRANZ, Defendant and Appellant.
C034462
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (El Dorado)
Filed 5/10/01

(Super. Ct. No. P99CRF0315)

APPEAL from a judgment of the Superior Court of El Dorado County. Thomas A. Smith, Judge. Affirmed.

Kathryn Houck under appointment of the Court of Appeal for Defendant and Appellant Anthony Ronald Franz.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Michael J. Weinberger, Supervising Deputy Attorney General, Thomas Y. Shigemoto, Deputy Attorney General, for Plaintiff and Respondent.

CERTIFIED FOR PARTIAL PUBLICATION*

SIMS , Acting P.J.

Defendant Anthony Ronald Franz appeals from a judgment following conviction on one

count of spousal battery (Pen. Code, 243, subd. (e)), two counts of making terrorist threats ( 4221), two counts of dissuading a witness from reporting a crime ( 136.1, subd. (b)(1)), one count of battery ( 243, subd. (e)(1), and one count of assault and battery ( 242). The trial court found true and imposed a one-year enhancement for a prior prison term. ( 667.5, subd. (b).)

In the published portion of the opinion, we consider and reject defendant's contention that there is no substantial evidence he made a verbal "statement" to support the terrorist threat convictions. However, we agree with defendant that the trial court erroneously found true the prior prison term enhancement which was founded on a federal conviction for possession of counterfeit United States currency.

Defendant also raises other contentions of insufficient evidence, evidentiary error, instructional error, and sentencing error, all of which we reject in the unpublished portion of the opinion.

We shall reverse the trial court's finding that the section 667.5 enhancement was true and remand to the trial court for a retrial of the enhancement. We shall also order correction of the abstract of judgment to stay the sentences on the section 422 counts (counts 3 and 4) and strike the prior prison term enhancement. We shall otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

By an information filed in September 1999, defendant was charged with: (1) inflicting corporal injury on cohabitant Erika Schmidt between June 15, 1999, and July 4, 1999 ( 273.5); (2) making a terrorist threat to Erika Schmidt on July 31, 1999 ( 422); (3) making a terrorist threat to Matthew Zook on July 31, 1999 ( 422); (4) making a terrorist threat to Jordan Immer on July 31, 1999 ( 422); (5) attempting on July 31, 1999, to dissuade Erika Schmidt from reporting a crime to law enforcement officers ( 136.1, subd. (b)(1)); (6) attempting on July 31, 1999, to dissuade Matthew Zook from reporting a crime ( 136.1, subd. (b)(1)); (7) attempting on July 31, 1999, to dissuade Jordan Immer from reporting a crime ( 136.1, subd. (b)(1)); (8) using force and violence on July 31, 1999, upon Erika Schmidt, a person with whom defendant had a previous dating relationship ( 243, subd. (e)(1)); (9) using force and violence on July 29, 1999, upon Erika Schmidt, a person with whom defendant had a previous dating relationship ( 243, subd. (e)(1)); and (10) using force and violence on July 31, 1999, upon Matthew Zook ( 242).

The following evidence was adduced at trial:

Erika Schmidt (age 20) testified defendant (age 28) was a former boyfriend who lived with her briefly. They fought often. In mid-June 1999, defendant hit her and tried to choke her at Benham Park after expressing anger that Schmidt received a telephone call from a male friend. Around the end of June 1999, Schmidt and defendant broke up (though he continued to drive her home from work), and defendant moved in with neighbor Judy Pena.

On the evening of July 29, 1999, while Schmidt was a passenger in defendant's car, defendant asked to borrow money from Schmidt. They stopped for gasoline at an AM/PM store, where some "kids" approached and asked defendant to buy beer for them. He agreed to do so (testimony which was admitted over defense objection). While defendant was in the store, Schmidt saw in defendant's car a photograph of two of her sister's friends, ages 12 and 13, with their legs spread open. She told him it was disgusting. He said it was not his, and he hit her several times, bruising her eye and cutting the back of her ear. Schmidt was afraid of defendant because he previously told her she would be sorry if she called the police on him. Schmidt's mother reported the incident to the police.

On the afternoon of July 31, 1999, Schmidt was on the street near her workplace, waiting for a taxi to take her home, conversing with her sister's 17-year-old boyfriend, Matthew Zook, and Zook's 17-year-old friend, Jordan Immer. Schmidt saw defendant's car and ducked into a nearby pizza restaurant and went into the restroom to avoid him. When she emerged, Zook said defendant "got in his face."

Schmidt, Zook and Immer took a taxi to Schmidt's home, where she shut all the curtains and locked all the doors, because she was afraid of defendant. The phone rang repeatedly, but she did not answer. Defendant came knocking on her door, but she did not answer. Schmidt, Zook and Immer stayed in a bedroom which was "movie theater dark" with the black curtains closed, but with some daylight coming in through the open hallway door. When defendant tried to gain access to the house through a window, Schmidt agreed to go outside to speak with him. When she opened the door, he pushed his way inside. He asked who was with her; she said no one. Defendant found Zook and Immer in the bedroom, called Schmidt a liar and slapped her face as she stood in the living room. Defendant then turned on the bedroom light and hit Zook on the face several times with a closed fist, yelling that he (defendant) wanted Zook to telephone and apologize to Zook's aunt (Judy Pena) for calling her a whore. Schmidt grabbed a cordless phone, ran out of the house, and called the police. She hung up when she saw defendant coming after her. He took the phone and punched her several times, causing her nose to bleed. He pulled her back inside the house, told her "I'm going to fucking kill you," and resumed yelling at Zook in the bedroom.

The police arrived. Schmidt ran outside, crying. She heard defendant tell the officers that she had fallen down the stairs. At first, Schmidt did not tell the officers what happened, because she was afraid of defendant, but she spoke to the police after being taken to the hospital.

Schmidt admitted she was jealous of defendant's new girlfriend, Judy Pena, and admitted she made telephone calls to Pena's house, but said the calls she made were to return defendant's calls to her.

A tape recording of Schmidt's 911 call was played for the jury; on it was heard the yelling of a male voice, which Schmidt identified as defendant's voice. A transcription of the 911 tape reads as follows:

"911 Operator: 911 emergency

"[Schmidt]: Please help me! Help me! Help me!

"911 Operator: What's going on?

"[Schmidt]: 5635 Canal Street.

"911 Operator: What's happening?

"[Schmidt]: Hurry! Hurry! Hurry! Please! No! Please help me!

"911 Operator: What's happening to you?

"END OF CALL

"--------------

"[Defendant]: Fucker!2

"911 Operator: Hello! Hello! This is 911.

"[Defendant]: Want to fucking talk (unintelligble) me of being drunk, huh? You'd better fucking watch your mouth!

"911 Operator: Hello!

"[Defendant]: I'm not no fucking little kid. I'll fucking kill you, boy! . . . (unintelligible) . . . You (unintelligible) you mother fucking . . . (unintelligible)

"911 Operator: I can hear males arguing.

"[Defendant]: (unintelligible) . . . shit! I'll fuck you up! I don't give a fuck about going back to the pen! I got connections, bro! My family is Mafia! Mafia! (unintelligible)

"911 Operator: Hello, this is 911.

"[Defendant]: . . . give a fuck! You'd better leave your mother-fucking aunt alone! And . . . Apologize to her! If you don[']t . . .

"911 Operator: (unintelligible)

"[Defendant]: . . . play it cool for you. (unintelligible) from here. I got a fucking calling card.

"Unknown voice: (unintelligible)

"[Defendant]: Don't worry about it. You're going to apologize. I'm going to call her right now.

"(unintelligible)

"END OF CALL."3

Matthew Zook testified. He witnessed the incident where defendant hit Schmidt in the park. Regarding the July 31, 1999, incident at Schmidt's home, Zook was afraid of defendant because a couple of days earlier, defendant threatened Zook, saying he was going to kill Zook, Zook's girlfriend (Schmidt's sister), and his girlfriend's family. Zook did not know why defendant was mad at him, other than the fact he associated with the Schmidts. At the pizza restaurant, defendant threatened to kill Zook. At Schmidt's house, Zook hid in the bedroom with Immer and heard Schmidt at the front door screaming "no, Tony," and hitting sounds. Defendant came into the bedroom and hit Zook three times with a closed fist, blurring Zook's vision. Defendant demanded that Zook call his aunt and apologize for calling her a whore. Zook made the call.

Zook said that when the police arrived, he "wasn't scared then because they were there because I felt threatened still [sic] . . . [b]y [defendant]." Officer Jacobs came into the bedroom where Zook and Immer were sitting on the bed. Zook saw defendant standing behind the officer; defendant "did a gesture like this, like shush. And then ran his finger across his throat." The record reflected Zook showed an index finger in front of the lips and then held up a thumb and ran it across his throat. Zook said defendant looked right at Zook's eyes as he did this. Immer was also sitting on the bed. The officer was between the bed and the door with his back to the door. Zook understood...

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