People v. Weber CA2/6

Filed 8/27/15 P. v. Weber CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B257960 (Super. Ct. No. 2014004250) Plaintiff and Respondent, (Ventura County)

v.

PAUL WEBER,

Defendant and Appellant.

Paul Weber appeals his conviction by jury for making a criminal threat (Pen. 1 Code, § 422) with special findings that he personally used a deadly weapon in the commission of the offense (§ 12022, subd. (b)(1)). The trial court granted probation, ordered appellant to serve 141 days county jail with credit for time served, and ordered appellant to pay victim restitution and various fines and fees. We affirm. Facts On February 8, 2014, John Fageaux, Jr. and his 74-year-old father stopped to eat at Burger King in Ventura after attending a college basketball game. Appellant sat at a nearby table and cursed loudly about having to pay $20 for a hamburger. Fageaux thought appellant was intoxicated and said, "Please keep it down. We're trying to eat here." Appellant cursed Fageaux, said "I'm debating about whether to cut your throat," and stood up. Fageaux stood up as appellant drew a four-inch switchblade from 1 All statutory references are to the Penal Code unless otherwise stated.

his hip pouch, and flicked the knife open. Brandishing the knife, appellant stepped towards Fageaux. Appellant made a couple of jabbing motions with the knife and said, "I'll cut you. I'll cut you." Fageaux feared for his life and said, "You come any closer, I'm gonna kick your ass." Brandishing the knife with his right hand, appellant picked up a cup of hot coffee and yelled, "Come on, come on." Scared, Fageaux tried to defend himself and said "If you throw that coffee on me, I'm gonna kick your ass." The bluff worked. Appellant set the coffee down and left the restaurant. A restaurant security guard peeked outside the door to see what appellant was doing, and followed him. Fageaux asked the manager to call the police and followed the security guard outside. The security guard grabbed appellant's bike and told appellant that he could not leave until the police arrived. Three police officers responded to the 911 call five minutes later. Fageaux told the officers that he feared for his life and signed a citizen's arrest form for appellant's arrest. Ventura Police Officer Todd Hourigan reviewed the video surveillance footage which showed appellant sitting at a table, talking to someone not visible in the 2 camera frame. Appellant was animated, quickly stood up, reached for an object in his back pocket, and made a wrist-flicking motion consistent with the switchblade knife found on his person. Appellant stood still but made movements with his wrist and arm. The surveillance video showed Fageaux enter the camera frame. After an exchange of words, appellant put the object away, grabbed his backpack, and left the restaurant. Sufficiency of the Evidence Appellant argues that the evidence does not support the finding that he made a criminal threat. As explained in In re George T. (2004) 33 Cal.4th 620, 630-631, a case involving the criminal threats statute: "Claims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard.