People v. O'Shea

1

THE PEOPLE, Plaintiff and Respondent, v. JAMES JOHN O'SHEA, Defendant and Appellant.

A164914

California Court of Appeals, First District, Second Division

April 12, 2024

NOT TO BE PUBLISHED

San Mateo County Super. Ct. No. 19NF004532A

Richman, J.

A jury convicted defendant James John O'Shea of multiple crimes involving his elderly mother. On appeal, defendant argues his conviction for dissuading a witness (Pen. Code, § 136.1 subd. (b)(2))^[1] must be reversed for various reasons including for lack of sufficient evidence. He also argues the evidence was insufficient to convict him of criminal threats (§ 422) and elder abuse (§ 368, subd. (c)). We agree that the conviction for dissuading a witness was not supported by substantial evidence and, therefore, reverse that conviction. In all other respects, we affirm the judgment.

BACKGROUND

The Evidence At Trial

Prosecution Case

On August 1, 2019, then 88-year-old Philomena O'Shea defendant's mother, testified at a videotaped conditional examination.^[2] At trial, the video and transcript of the conditional examination were admitted into evidence and presented to the jury.^[3] The People also called Officer Eric Martinez of the Pacifica Police Department, among other witnesses.

Defendant's family background and events leading up to the charged offenses

Philomena O'Shea testified that she was born in November 1930. She has six living children, including defendant, Vincent O'Shea, Mary O'Shea, and Ted O'Shea.^[4] She also had a son named John O'Shea but he died when he was 15 months old. Philomena has resided in her home in Pacifica since 1961 or 1962.

Defendant moved out of Philomena's home when he was 18, got married, and had children. About 20 to 30 years later, he moved back to the home. As an adult, he lived at the home on and off for a prolonged period of time. At one point, Philomena allowed defendant to live in her garage for several months.

Sometime in June 2016, defendant "was very abusive and got in [Philomena's] face and said hurtful [comments] and called [her] a fucking bitch." On June 22, 2016, Philomena went to the courthouse, where she filled out a form entitled "Request for Elder or Dependent Adult Abuse Restraining Order." Two days later, however, she withdrew her request because defendant "ha[d] a physical problem that need[ed] attention that [she] ha[d] to take care of." The court lifted the order.

On August 25, 2016, Philomena filed another request for a restraining order. Defendant was not living at the house at that time, but he had "picked the lock" of the house and entered through the garage. He had twice broken into her house through the window. Defendant also "came very close to [her] face." Philomena "was very frightened of [defendant]" and had "locked [herself] in the bathroom and called the police." Philomena requested that defendant "not . . . park near [her] house," "[s]tay a mile from [her] residence," and "not come near [her] for the rest of [her] life."

On October 7, 2016, Philomena attended a court hearing on her request for a restraining order. The court issued an "Elder [or] Dependent Adult Abuse Restraining Order After Hearing." The order listed the restrained person as "John J. O'Shea AKA James John O'Shea." The parties stipulated that defendant's full name is James John O'Shea. Philomena testified that the name listed on the protective order ("John J. O'Shea") was incorrect, as that was the name of her other son who was deceased, and that she was not the one who had written the name. She testified that she would not have mistakenly listed defendant as "John."

On November 11, 2016, defendant was informed by law enforcement that there was a restraining order against him.

Another protective order was issued against defendant on July 6, 2017.

Evidence related to the criminal threats and elder abuse charges (counts 1 and 4)

Philomena testified that on April 29, 2018, defendant went to her house some time before noon or early afternoon. Philomena might have said something to hurt his feelings. While they were in the living room, defendant then "got very close to [her] face" and from "about a foot away" said, "I'll burn the house down and kill all of you." He said this loudly and was upset. Philomena understood the threat to be directed at her and her children and grandchildren who had regularly stayed over her house.

Philomena testified that "After a threat like that, [defendant] sounded like he might do it. . . [b]ecause he didn't falter when he said it. He just said it. And I picked up on it immediately that something has gone wrong here." She expressed, "I thought he was out of control. So anything could happen." She added she was "in fear that he would carry that out."

Philomena testified she "got out of there as quick[ly] as [she] could," jumped in her car, and drove to the police station. While on her way there, she called 911. Philomena explained she called 911 because "[defendant] was out of control. He got in my face. He got very close to my face and threatened . . . to burn the house down and kill us." And she went the police station because she "wanted to be heard," seen, and listened to. She also wanted to be protected. Philomena testified she called the police because she "just wasn't taking any more chances."

At the time of the statement, defendant did not physically assault Philomena. Defendant had never threatened Philomena before, and to her knowledge, had never engaged in violent behavior.

Philomena testified that in the day or two after the incident, defendant's threat was "sitting there in [her] brain . . . because it was just so sinister and weird." Thinking about the threat "gave [her] the jitters almost."

During his cross-examination at the conditional examination, defendant's counsel confronted Philomena with her testimony from the preliminary hearings regarding various details of the April 29, 2018 incident. For example, counsel brought up her prior testimony that she and defendant were in the kitchen (rather than the living room) when he made the threats. Philomena said she did not remember her prior testimony.

Defendant's counsel also asked Philomena if she remembered testifying that after defendant made the threats, she may have gone to her backyard to do some gardening and water her plants and after 40 to 45 minutes, went to the police station. Philomena recalled testifying about going to the police station some 45 minutes after defendant made the threats. However, she clarified, "I wasn't really watering. I just picked up the hose and did something with it and just put it down ....I don't think I was out there watering with that kind of conflict going on."

Officer Martinez testified that on April 29, 2018, at around 3:30 p.m., he was dispatched to the police station. He was "advised that Philomena . . . was at the police department wanting to talk to an officer about her son being at her residence and her son threatening to burn the house down." When he met with Philomena, she seemed "concerned[,] . . . on edge[,] and frightened." "She was real fidgety" and "rubbing her arms," indicating she was nervous.

Philomena told Officer Martinez there was a restraining order against defendant, but that he had entered her house through the unlocked front door. "[H]e was in an agitated mood. So much so, she accused him of being on drugs." "[W]hen she made that statement, [defendant] went into a tirade where he threatened to kill her, burn the house down, and then kill himself."

After Officer Martinez spoke to Philomena, and while she was still at the station, he went to her house to investigate the reports. While waiting at the front door, defendant's brother, Ted, and defendant's son, Keith, arrived at the house. They allowed Officer Martinez inside the house, who then located defendant in the garage. Defendant escaped from the garage, but Officer Martinez managed to apprehend him.

On cross-examination, Officer Martinez was questioned about how he had written in his police report that he was responding to a report of a restraining order violation. Officer Martinez then testified that the restraining order violation "was [Philomena's] primary concern." He stated, "So, her going to the police department was to report the court order violation. And that's when she made the comment about the threats."

Officer Martinez also recalled Philomena saying she had tried to "deescalate the situation by doing some gardening in her backyard" and about 40 minutes after that, decided to go to the police department to report the restraining order violation.

Evidence related to the dissuasion charge (count 10)

On February 8, 2019, while in custody at the San Mateo County Jail, defendant made a phone call to Philomena. The phone call was recorded and transcribed. A portion of the recording was played at trial, and the transcript of the call was admitted into evidence.

During the call, defendant said: "They've committed multiple levels of fraud on me. Okay? These documents were in our brother's name who passed away in 1961. Your first son. Okay? I don't know how the fuck that happened but they put the restraining order in (John)'s name. Okay? Not only that they covered stuff and . . . they faked these forms. They forged stuff and they frauded stuff. They . . . changed the dates on forms. And I got all the evidence in my cell, okay? All these restraining orders gonna be thrown out. Okay? They're gonna have to let me out...."

Defendant continued: "And that's not your fault.... I don't even know why this restraining order was ever put on me. But I'm not mad about that. I don't have no bad feelings toward you. I just don't understand why this all happened. Okay? Because I never did...