Dias

Statement of the Case

Louis Dias, Jr., was convicted by a jury of kidnapping (count 1, Pen. Code § 207, subd. (a) ); burglary of an inhabited dwelling (count 2, § 459); threatening a crime (counts 3 and 4, § 422); and evading an officer (count 5, Veh. Code, § 2800.2). The jury also found with respect to counts 1 through 4 that Dias had personally used a firearm within the meaning of section 12022.5. A defense motion pursuant to section 1118.1 as to all counts was denied.

Dias makes two appellate claims: (1) the convictions on counts 3 and 4 must be reversed because some of the threats made by him were conditional and therefore not in violation of section 422, and it cannot be determined whether the jury based its verdict on such noncriminal conduct; and (2) the conviction on count 1 must be reversed because the trial court failed to fully instruct on the mens rea element of kidnapping.

We will affirm. We hold in part that a threat subject to an apparent condition may violate section 422.

Statement of Facts

Dias and Sharon married in July of 1980, had two children, and separated in November of 1989, although Dias was opposed to the separation. They eventually…