Filed 5/12/16 P. v. Wondafrash CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                          D068002

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. Nos. SCD255584 &
                                                                     SCD255835)
DAGIM WONDAFRASH,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Sharon B.

Majors-Lewis, Judge. Affirmed.



         Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth

M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.

         When defendant and appellant Dagim Wondafrash was arrested for making the
first of two separate criminal threats, police found a pellet gun in his car. At trial for the

two criminal threats, the trial court permitted testimony about the gun. We find no abuse

of discretion in admission of the pellet gun testimony; moreover, in light of the

statements Wondafrash made to the victims and his conduct, admission of the evidence

was not prejudicial to his defense that in both instances he was in the manic phase of his

bipolar condition and did not have any intention of terrorizing his victims.

                   FACTUAL AND PROCEDURAL BACKGROUND

       1. Bank

       On April 16, 2014, Wondafrash went to a bank in the Mira Mesa community

of the City of San Diego and attempted to open up a business account. Although he was

somewhat confrontational with the banker who dealt with him, Panchanh Sripolpa, she

initially opened the account for him and accepted his initial deposit into the account.

However, after Wondafrash left the bank, Sripolpa discovered that the business entity

under which Wondafrash had opened the account had been suspended by the Secretary of

State. In light of that information, Sripolpa closed the account, called Wondafrash and

left a voicemail message asking him to call her.

       Very shortly after learning that the account had been closed, Wondafrash called

the bank and spoke with Sripolpa. She explained she had closed the account because the

business entity had been suspended and advised Wondafrash that he should return to the

bank and she would refund his deposit. Wondafrash responded very angrily to Sripolpa.

In part, he told her she was a "fucking bitch" and, in a vicious tone, which Sripolpa's

supervisors heard because she put the call on a speaker, Wondafrash told her, "I'm going

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to fucking kill you, I'm going to murder you, I'm on my way, I've got a gun."

       Sripolpa and her supervisors took Wondafrash's statements seriously; Sripolpa

went into the bank's vault and locked it, and her supervisors alerted the bank's security

personnel and police and locked the bank's doors. Police arrived at the bank within

minutes and were admitted. They spoke with Sripolpa who appeared "visibly upset" and

looked "very, very scared."

       Shortly after police arrived, Wondafrash sped into the bank's parking lot and

aggressively attempted to open the locked front door of the bank; when he could not get

in that door, he went to another entrance and was arrested. Police searched his car and

found a pellet gun, which resembled a colt handgun, in the door on the driver's side of the

car.

       Following Wondafrash's arrest, Sripolpa temporarily changed her name and began

taking different routes home from work. She also installed security cameras at her home

and obtained a restraining order against Wondafrash.

       2. Gym

       Shortly after his arrest on April 16, 2014, Wondafrash was released on bail. One

week later, on April 23, 2014, Wondafrash went to a gym where he apparently believed

he had a valid membership. However, his membership had been revoked that morning,

and, when he arrived at the gym, a receptionist, Janelle Leon, asked him to wait in the

reception area while she contacted the gym manager. Wondafrash ignored Leon's request

and walked into the gym. A personal trainer in the gym and a private security guard

found Wondafrash and asked him to leave. Wondafrash argued with the trainer and

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guard for several minutes, challenged the trainer to fight "MMA" style, but ultimately

agreed to leave. As he was leaving the gym, Wondafrash shouted obscenities in "English

and another language." Wondafrash stopped at the reception desk on his way out, looked

Leon "dead in the eyes," and, in a calm voice told her, "I'm going to chop your fucking

head off and put it on a pole, I'll be back."

       After Wondafrash left the gym, Leon was frightened that he would come back and

was afraid to complete her shift; when her shift was over, the trainer walked her to her

car. Because Leon feared for he life, she quit her job at the gym and moved out of San

Diego County.

       3. Trial Court Proceedings

       Wondafrash was charged with two counts of making a criminal threat and one

count of committing an offense while released on bail. (Pen. Code, §§ 422 & 12022.1,

subd. (b).) At trial, Wondafrash offered evidence from a psychiatrist who treated him in

August 2014, while he was hospitalized under a 72-hour hold. (See Welf. & Inst. Code,

§ 5150.) The psychiatrist stated he believed Wondafrash was suffering from bipolar

disorder while hospitalized and that, at the time of the earlier April 2014 threats, a person

with Wondafrash's history and behaving in a manner similar to Wondafrash was likely in

a "manic episode." According to the psychiatrist, in a manic state a person's mind is

racing and they cannot not shut down or filter out their thoughts. The jury found

Wondafrash guilty of both counts of making a criminal threat, and he admitted that he

committed one of the threats while released on bail. The trial court sentenced

Wondafrash to a total prison term of four years eight months.

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                                         DISCUSSION

       On appeal, Wondafrash argues the trial court erred in permitting testimony, over

his objection, about the pellet gun police found in his car. He argues it was inadmissible

under Evidence Code section 352 because it was highly prejudicial and not probative

with respect to his intent when he made threats against Sripolpa and Leon. He argues the

error was prejudicial because it distracted the jury from his psychiatric defense.

       Evidence is inadmissible under Evidence Code section 352 when its prejudicial

impact outweighs it probative value. (Evid. Code, § 352; see People v. Kipp (2001) 26

Cal.4th 1100.) We review a trial court's rulings on Evidence Code section 352 objections

for abuse of discretion. (People v. Gonzalez (2006) 38 Cal.4th 932, 950; People v. Lewis

(2009) 46 Cal.4th 1255, 1286.) As Wondafrash points out, proof of a criminal threat

requires evidence (1) that, when the threat was made, " '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 . . . 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.' " (In re George T. (2004) 33

Cal.4th 620, 630; see CALCRIM No. 1300.) It is irrelevant whether the defendant

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intended or was capable of carrying out the threat. (People v. Lopez (1999) 74

Cal.App.4th 675, 680.)

       As the trial court noted in denying Wondafrash's motion to exclude the pellet gun

evidence, the fact he appeared at the bank shortly after threatening to shoot Sripolpa with

a gun in his car and readily available to him certainly supports an inference that, whether

or not he intended to harm her, Wondafrash took steps to make sure his statements would

be taken seriously. As such, it was relevant to the charges made against him. As the trial

court also noted, the fact the gun was not an actual firearm, but only a relatively less

lethal pellet gun, diminished its prejudicial impact. Under these circumstances, the trial

court did not abuse its discretion in admitting evidence about the pellet gun.

       Moreover, given the undisputed testimony about the significant impact

Wondafrash's statements and conduct had on Sripolpa and Leon, the impact of admitting

the pellet gun evidence, even if it was an abuse of discretion, was limited and in no sense

prejudicial. (See People v. Watson (1956) 46 Cal.2d 818, 836.) With respect to any

potential prejudice, we also note Wondafrash's psychiatric defense was not particularly

persuasive. It not only depended on a diagnosis made several months after the incidents,

but even if the jury accepted the defense contention that Wondafrash was in a manic state

when he made the threats, this conclusion did not prevent the jury from finding that even

in a manic state, Wondafrash nonetheless intended that both victims take his threats

seriously.




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                                  DISPOSITION

     The judgment of conviction is affirmed.




                                                BENKE, Acting P. J.

WE CONCUR:


NARES, J.


O'ROURKE, J.




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