The opinion of the court was delivered by: Rushing, P.J.
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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 ...