IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 6, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOEL GONZALES, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Rushing, P.J.
P. v. Gonzales
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Joel Gonzales was sentenced to 25 years in prison after the trial court found him guilty of seven felonies. Among the charges were five counts of criminal threatening in violation of Penal Code section 422. On appeal defendant contends that the evidence was insufficient to sustain a guilty verdict as to one of these counts, because there is no evidence that defendant issued a verbal threat to the victim named in that count, and no evidence that he had the specific intent that anything he said be taken by her as a threat. We find this contention meritorious and further conclude that in the absence of evidence that the victim named in that count was capable of understanding a verbal threat, the required element that she be put in fear by such a threat could not be found. We will therefore reverse the judgment as to that one count only.
Defendant was charged with five counts of making criminal threats (Pen. Code, § 422), one count of residential burglary (Pen. Code, §§ 459, 460, subd. (a)); and one count of being a convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). It was also alleged that he had sustained two "strike" priors.
The parties agreed to try the case to the court based upon documentary materials and testimony. The documentary materials of relevance here were the transcript of the preliminary hearing, police reports, and a recording and transcript of defendant's statement to police. Live testimony was received from a forensic toxicologist and defendant.*fn1
All of the charges arose from a drunken rampage on July 16, 2007, in which defendant, while armed with a .25 caliber handgun, menaced his girlfriend Leticia Salazar, her sister-in-law Cristina Avila, Leticia's teenage daughter Justine Valdez, and two of their neighbors. Viewed most favorably to the judgment the evidence showed that the rampage originated when defendant came home very drunk to find Ms. Salazar, Ms. Valdez, and Ms. Avila watching television. He began yelling at Ms. Salazar, not making any sense. At some point he drew a small silvery gun from his pocket. She picked up Ms. Valdez, who needed help to walk, and all three women left the house. Defendant chased them into the street.*fn2 As Ms. Salazar stood with Ms. Valdez in her arms, defendant pointed the gun at her and said that if he heard cops coming he would shoot her. He also threatened to shoot Ms. Avila. According to her, the threat--addressed to her and Ms. Salazar--was unconditional: "I'm going to shoot you and her." At the sound of approaching sirens, he fled.
Officer Stephens reported that when he arrived at the scene he found all three women "hiding behind a truck." He wrote that Ms. Salazar and Ms. Avila were "crying and obviously frightened." There is no suggestion in the report that Ms. Valdez appeared frightened. At the preliminary hearing he suggested that "all three of them were hiding behind a truck, basically cowering in fear." He went on to say that "both of them were very upset and crying."*fn3
It was undisputed that Justine Valdez is unable to walk unassisted or to speak. Her mother described her condition as "developmental delay" occasioned by cerebral palsy. Defendant described her as "handicapped" and "like a little baby." She was able to walk if someone held her arms; otherwise she required a wheelchair. She was incapable of giving a statement and no evidence of any kind was received from her. There was no evidence that she understood speech. Ms. Salazar testified that she communicated "[j]ust by certain sounds and by body movement." She testified that defendant was able to communicate with her, and she with him, but she did not specify the nature or method of the communication. She further testified that defendant was "really good with her" and that they had a very close relationship. He never tried to hurt her in any way.
Defendant testified to similar effect, saying that he had "[a] pretty good relationship" with Ms. Valdez. Asked if he was "able to communicate with her," he replied, "I used to make noises, and she used to try to copy me." She seemed attached to him, i.e., she looked him in the eye although she "never looked at nobody in the eye." Asked if he knew "what her medical issues are," he said, "Well, they say she doesn't know anything. She doesn't know how to speak. She doesn't know--she doesn't have no emotions, like, she doesn't know if you are yelling at her or not. She doesn't like know when you say no. She doesn't know what that means." She was able to walk if held up. She got around by defendant and Laticia holding her up "or in a wheelchair." She was attending a special school, but was not learning to read and write. She wasn't capable of doing that. He would feed her when he took care of her. He considered her his daughter.
At the preliminary hearing defense counsel argued that the criminal threat charge was not proven as to Ms. Valdez. He said that, "[B]ecause of [her] incapacities, I don't think that she could perceive of any threat. There's no indication she could perceive of any threat." The prosecutor responded, "That's not supported by the record. What the testimony is is that she has cerebral palsy. She cannot talk and walk without assistance. Doesn't say she's deaf or blind. And given the fact that she's not deaf or blind, I believe that she would be able to perceive when someone's yelling at her, threatening to kill her, and pointing a gun at her." The court accepted this view, but asked whether there was evidence that Ms. Valdez "was in sustained fear." The prosecutor answered that he had no additional evidence to offer. "As to her circumstances, I think the Court can rely on human nature that when a 15-year-old is--her life is threatened by someone pointing a gun at her, her mother and best friend are driven to a state of near hysteria by the time he got there, it's reasonable to conclude that 15-year-old person would also be in a sustained state of fear." Defense counsel disagreed, saying, "I don't think the evidence shows that the gun was pointed at her, that she was threatened. I don't think that's been shown in any way. I think to--to put her mother's fear on top of hers is an [in]appropriate standard. There's no indication she was fearful, even circumstantially, or that she could--had the ability to perceive. We don't have that evidence." The court found all charged offenses to have been committed.
At trial defense counsel argued that defendant had been too intoxicated to entertain the requisite specific intent to sustain any of the charges of criminal threatening. Specifically addressing count 6, he further argued, "There's no evidence of indicating [sic] that Justine could perceive what was going on. She's clearly disabled. And I don't think we see anywhere that she was in fear or any threats were directed in her way. So if you were to somehow find the intent I still think with regards to Count 6 it was just not there." The prosecutor replied, "I have to reject [the suggestion that Justine could not be a victim] based on a description of her mother of her illness. Justine is not a vegetable. She's not even described as mentally retarded as I recall. I don't remember the specifics. She's, she has problems. Obviously she's disabled but she's still a person who can be threatened and terrified for her life and was in fear for her life in this case from all the witnesses."
The court rejected the defense argument, explaining as follows: "Much was made of Count 6 as to Justine because of her state. And the court finds that while I think the defense focused only on whether she would have an ability to appreciate that particular threat[,] I don't find that the statute is worded that way, and I do not find that CALCRIM and some of the other CALJIC instructions and some of the case law that I looked at require that the victim or potential victim actually had an appreciation of it. There should be some cognition of it and I do find that Justine has cognitive values because it was spoken of during the course of the trial that they were able to communicate on a pretty fundamental level but that it in fact was done. And I think that that--what is more important is the conduct of the defendant in that set of circumstances and I believe that the threats were made to all three of the members of the household that night that belonged to Ms. Salazar."
After striking one of the priors, the court sentenced defendant to state prison for a total term of 25 years.
"In reviewing the sufficiency of the evidence an appellate court 'must assume in favor of the verdict the existence of every fact that the [trier of fact] could reasonably deduce from the evidence and then determine whether or not a reasonable [trier of fact] could find the defendant guilty beyond a reasonable doubt.' " (People v. Hall (1964) 62 Cal.2d 104, 109-110 (Hall).) In doing so, however, we cannot rely solely on parts of the record favoring the judgment, but "must review the whole record . . . to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v. Virgina (1979) 443 U.S. 307, 319.) This inquiry may require us to consider whether a trier of fact could "reasonably reject" evidence that "undermines confidence" in the defendant's guilt. (Hall, supra, at p. 112; see In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372.) The ultimate question is whether, on the evidence before the court, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia, supra, 443 U.S. at p. 319, italics omitted.)
Defendant contends that the evidence below fails to support a finding of two necessary elements of the charge of criminal threatening as to Ms. Valdez. He asserts there was no evidence that he made any verbal threat to Ms. Valdez. He cites People v. Franz (2001) 88 Cal.App.4th 1426, 1439, which acknowledged the statutory requirement that in order to be guilty of criminal threatening, the defendant must make a statement "verbally, in writing, or by means of an electronic communication device," with the intent that it be taken as a threat. (Pen. Code, § 422.) The statute goes on to refer to the statement's effect on "the person threatened," plainly implying that both the statement and the required intent must be directed to that person. Defendant contends that there was no evidence that he issued any verbal threat to Ms. Valdez, but only that he issued such threats to her mother, Ms. Salazar, and her sister-in-law, Ms. Avila.
Respondent contends that substantial evidence of a threat directed to Ms. Valdez can be found in the testimony of Officer Stephens at the preliminary hearing, in which he recounted the original statements of Ms. Salazar and Ms. Avila. Some support might indeed be extracted from his description of Ms. Salazar's account, if only because of its ambiguity; he testified that in her account, she was standing in the street with Ms. Valdez in her arms and Ms. Avila standing nearby when defendant "told them if he heard the police coming he would shoot--shoot them." (Italics added.) But the officer went on to clarify that Ms. Salazar said he had "pointed the gun at her" and "also pointed the gun at Ms. Avila and said he was going to shoot her as well." (Italics added.) In this context his use of "them," where we have italicized it, was intolerably ambiguous. Moreover Ms. Avila's account, as recapitulated by Officer Stephens, tended strongly to resolve the ambiguity against respondent's reading: "She said he wracked [sic] the gun or pulled the slide back on the gun as if chambering a round, and he pointed it at them and said that he was going to shoot both of them." (Italics added.)
Stephens's original police report is even less supportive of the judgment on this point. According to Ms. Salazar ("V-1" in the report), defendant "followed them to the street and pointed the gun at V-1 . He said to her, 'If I hear the cops coming I am going to shoot you.' V-1 still had her daughter in her arms." He then "pointed the gun at V-2 [Ms. Avila] and told her he was going to shoot her as well." Similarly, Ms. Avila said that he " 'racked' the gun, and pointed it at them. He told V-2 that he was going to shoot her and V-1. He said, 'I'm going to shoot you and her.' "
We agree with defendant that this does not constitute evidence from which a rational trier of fact could find beyond a reasonable doubt, or at all, that defendant issued a verbal threat to Ms. Valdez. By the same token, defendant correctly contends that there was no evidentiary basis for the required finding that he entertained the specific intent that Ms. Valdez, as distinct from her two companions, take his statements, or indeed his conduct, as a threat. (See People v. Toledo (2004) 26 Cal.4th 221, 228.)
Although defendant does not pursue the point on appeal, we also detect considerable merit in counsel's argument below that there was no evidence from which the court could find that Ms. Valdez was able to "perceive of any threat," even if one had had been made. At trial the prosecutor met this contention by asserting that even though Ms. Valdez "has problems," she was "not a vegetable" and "not even described as mentally retarded" as far as he could recall. "Obviously she's disabled," he said, "but she's still a person who can be threatened and terrified for her life and was in fear for her life in this case from all the witnesses." Respondent echoes this argument to some extent by quoting Officer Stephens's testimony that when he arrived at the scene, all three women were "hiding behind a truck, basically cowering in fear."
In suggesting that Ms. Valdez was not "described as mentally retarded," the prosecutor was either engaging in an inappropriate level of literalism or he had overlooked her mother's description of her condition as "developmental delay" occasioned by cerebral palsy. Defendant described her without contradiction "like a little baby." Officer Stephens himself described her as incapable of giving a statement. No one suggested that she could understand speech. Ms. Salazar testified that she communicated "[j]ust by certain sounds and by body movement." Although she testified that defendant was able to communicate with her, she did not indicate that he could communicate with her verbally, or otherwise explain what she meant. Defendant himself, when asked if he was "able to communicate with her," replied, "I used to make noises, and she used to try to copy me." He also testified, "Well, they say she doesn't know anything. She doesn't know how to speak. She doesn't know--she doesn't have no emotions, like, she doesn't know if you are yelling at her or not. She doesn't like know when you say no. She doesn't know what that means." She was attending a special school, but was not learning to read and write, because she wasn't capable of doing that.
The statute conditions culpability not only on the defendant's making a verbal threat but also on his "thereby" causing the person threatened "reasonably to be in sustained fear for his or her . . . safety . . . ." (Pen. Code, § 422.) The evidence before the trial court afforded no reasonable basis to suppose that Ms. Valdez was able to comprehend a verbal threat. If she could not comprehend it, she could not be placed in fear by it. The court may have been entitled to find, based on Officer Stephens's courtroom account, that Ms. Valdez was frightened.*fn4 But the record affords no basis to find that her fear, if any, was caused by a threat issued from defendant as distinct from his general violent demeanor or the fear he had obviously engendered in her companions. The statute required that her fear have at least its partial genesis in a verbal threat issued by defendant. Without evidence that the victim could comprehend the threat, it was impossible to find that it contributed to any emotional state she may have experienced.
The judgment is reversed as to Count 6 with directions to enter a judgment of acquittal on that count and to resentence defendant on the remaining counts. (See Burks v. United States (1978) 437 U.S. 1, 10, 18.) In doing so, the court is directed to modify the judgment to reduce by $20 the court security fee imposed under Penal Code section 1465.8.
WE CONCUR: PREMO, J. ELIA, J.