(Los Angeles County Super. Ct. No. MA048127) APPEAL from a judgment of the Superior Court of Los Angeles County, Christopher G. Estes, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
The opinion of the court was delivered by: Aldrich, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant and appellant Margarito A. Iboa told firefighters and deputies trying to put out a fire in his backyard to, among other things, "get the fuck" off his property. He combined his belligerent words with aggressive conduct, albeit stopping short of threatening to "kill" the officers and of physical violence. Iboa was charged and convicted, under Penal Code section 69,*fn2 of seven counts of deterring or preventing, by means of any threat or violence, an executive officer from performing a duty imposed by law.
Iboa contends on appeal that his convictions on those counts must be reversed because the First Amendment protected his speech and because the jury was not instructed his threat must have been "a serious expression of intention to inflict bodily harm." In the published portion of this opinion, we find that where, as here, there is sufficient evidence a defendant combined threatening language with threatening physical behavior, he may be convicted, under section 69, of threatening unlawful violence without running afoul of the First Amendment. We also conclude that the trial court did not err by failing to instruct the jury that a threat under section 69 must be "a serious expression of intention to inflict bodily harm," because that is not an element of the crime.
Although we conclude that there is no ground to reverse Iboa's convictions under section 69, we find, in the unpublished portion of this opinion, that there is insufficient evidence to support the jury's true findings on the gang allegations as to five of the seven counts. We also find that Iboa's convictions on three counts of felony child endangerment must be reduced to misdemeanors. We reject the remaining contentions and reverse and remand this matter for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
(A) December 28, 2009: Iboa refuses to submit to a lawful detention (count 12).
On December 28, 2009, at 8:30 a.m., Lancaster Deputy Sheriff Diego Andrade (Deputy Andrade) went to Iboa's house on Gadsden Avenue in Lancaster because someone complained about loud music. When the deputy, in uniform, arrived, Iboa was standing by a car from which loud music was coming. Using a fast pace, Iboa angrily walked toward the deputy. Concerned that Iboa might have a weapon concealed in his baggy clothing, the deputy told Iboa to put his hands on the hood of the patrol car. Saying, " 'Fuck you. Stop harassing me,' " Iboa instead ran to the front yard area of the house. When the deputy explained why he was there, Iboa turned off the music, although he again refused to walk to the deputy, repeating, " 'Fuck you. I'm not doin' shit.' "
Deputy Andrade called for backup, while Iboa continued to yell that the deputy needed a warrant. When Sergeant Roelofson arrived, Iboa cursed at him too. Iboa ran into the house, and the deputies left.
(B) January 26, 2010: Iboa attempts by threats to deter executive officers from performing their duties (counts 1-7).
On January 26, 2010, at 2:00 a.m., about 12 firefighters (including Michael Peterson, Joseph Carvalho, Jason Swan, Christopher Brown, and Fire Captain Jim De'Evelyn), went to Iboa's house after receiving reports of a fire. A 10- to 12-foot pile of debris was on fire in Iboa's backyard, and 10-foot flames could be seen from the street. Asleep, Iboa was off to the side of the fire. Firefighter Carvalho woke Iboa, who grabbed a hose to help put out the fire.
When Fire Captain De'Evelyn tried to talk to Iboa about the fire, an argument erupted. Concerned that Iboa was going to assault the captain, because Iboa "was kind of puffed-chest" and cussing, Firefighter Carvalho stepped between De'Evelyn and Iboa. Firefighter Brown also thought that Iboa approached the captain aggressively, with "just maybe kind of a little physical threat, kind of a little body force." Iboa turned to go back to the house, and Carvalho, thinking that Iboa was getting a gun or knife, told the other firefighters to leave, even though they weren't done putting out the fire. When Iboa ran past Firefighter Swan, he heard Iboa say, " 'I'll take care of you guys' " or " 'You'll see what happens.' " Firefighter Brown thought Iboa said something like, " 'I'm going to show you' " or " 'We'll see about that.' "
Iboa came out of the backyard and threw out the fire hose. He yelled at the firefighters to "get the fuck off his property" and asked "who the fuck [they] thought [they] were." He said they didn't know "who the fuck" he was, and he would "show [them] who" he was. The fire chief instructed the firefighters to wait for sheriffs to arrive.
Los Angeles County Deputy Sheriffs Ryan Valento (Deputy Valento) and Gabriel Frias (Deputy Frias) soon arrived at the house, where the fire was still burning. Deputy Frias asked Iboa to talk to him, but Iboa said, " 'Fuck you guys. You need a warrant. I can burn whatever I want.' " Iboa lifted his shirt, exposing his Mid Town Criminals (MTC) gang tattoos, and yelled that they couldn't come in without a warrant, that " 'You can't fuck with me. I'm from fuckin' M-T-C,' " which was tattooed on his stomach. Deputy Valento thought that Iboa, whose fists were clenched, wanted to fight. Yelling, Iboa, while lifting his shirt and acting wild, walked back and forth towards the deputies until he was 8 to 10 feet from them. Deputy Valento judged it unsafe to go onto Iboa's property to take care of the fire until more deputies arrived.
When more deputies arrived, they jumped over the fence, and Iboa ran into the house. With their guns out, the deputies told the firefighters to put out the fire, which they quickly did. Iboa did not come back outside.
(C) January 27, 2010: The search of Iboa's home (counts 8-10).
The next day, January 27, 2010, Detectives Steve Owen and Mark Donnel from the Los Angeles County Sheriff's Department searched Iboa's house. At the time of the search, Iboa, Roberta Garcia, Anthony Martinez, and three children--aged six, three and one--were in the house. Garcia was the children's mother, and Iboa was the father of the two youngest children and the stepfather of the oldest child. Inside, the house was filthy, with trash and debris lying about. Wires were exposed, and Detective Owen was almost shocked by a spark of electricity when he flipped a switch in the kitchen. A marijuana bong was in the front room on the fireplace mantle. The front security door had two bullet holes in it. Old food was all over the kitchen, which smelled like old trash. Old food and mold were also inside the refrigerator. There was no running water in the house, and the sole toilet was filled with urine and feces. The house was unheated, and it was just as cold in the house as it was outside, in the low 30's. The youngest child was on a bed but the two oldest children were on the floor with blankets. The children's feet were dirty, and the youngest had a runny nose. On the floor in the room in which the children were found was an open 40-ounce beer bottle.
Martinez, who was in the house at the time of the search, was a member of the Park 13 gang, but he hung out with MTC gang members in Lancaster. In his pocket, he had a blade that was in an open, locked position.
The detectives found a calendar on which the birthdates of people with gang monikers were marked; photographs with people making MTC gang signs; and papers with the phone numbers and addresses of gang members. A cell phone found in the bedroom had MTC gang monikers programmed into the contact list.
On January 26, 2010, this text was received on the cell phone, " 'Hey, can you gt a 20 sac 4 me? I'm leaving wrk nw.' " No drugs or drug paraphernalia or pay-owe sheets, however, were found in the house. But in the trunk of a car parked in the driveway, detectives found a gram scale and a Ziploc baggie containing additional baggies. Three baggies containing methamphetamine were in the driver's side sun visor. The three baggies had a net weight of about .52 grams of powder having a street value of $50 to $100. A criminalist analyzed two of the three baggies, and the two baggies contained .35 grams of methamphetamine. In Detective Gillis's opinion, the methamphetamine was possessed for the purpose of selling it.
In a detached garage, detectives found 16 live rounds of ammunition of varying calibers and five expired rounds. Two sword-type knives were in the garage. No firearms were found in the garage or the house, but a semi-automatic handgun magazine holder was under the mattress in Iboa's room.
Detective Richard Cartmill at Lancaster Sheriff's Station was assigned to the gang unit in Antelope Valley. He was familiar with the MTC gang in Antelope Valley and had testified approximately 10 times as an expert on the gang, which had about 120 documented members. MTC engaged "in crimes such as assaults, up to and including attempted murder, weapons possession, possession for sales of drugs, vandalism, [and] robbery." It was known for selling methamphetamine.
Iboa ("Cruiser") had been MTC's leader for close to a decade. His home on Gadsen was a well known MTC house. He had MTC tattooed on his stomach, " 'Mid Town Criminals' " tattooed on his neck, a teardrop tattoo on his face, and " 'Heffe de Heffe' " on his arm.
According to Detective Cartmill, a gang member displays and references his gang tattoos to law enforcement to intimidate law enforcement and the general public and to enhance the gang's reputation.
II. Procedural background.
On October 22, 2010, a jury found Iboa guilty of counts 1 to 7, attempting by threat or violence to deter an executive officer from performing his or her duty (§ 69);*fn3 counts 8 to 10, felony child endangerment (§ 273a, subd. (a)); count 11, possession of methamphetamine for sale (Health & Saf. Code, § 11378); and count 12, resisting, obstructing or delaying a peace officer (§ 148, subd. (a)(1)). As to counts 1 to 7 and 11, the jury found true gang allegations under section 186.22, subdivision (b)(1)(A). As to count 12, the jury found true a gang allegation under section 186.22, subdivision (d).
On January 18, 2011, the trial court sentenced Iboa to the midterm of two years on count 1 plus three years on the gang enhancement, to one year four months on count 8, to one year eight months on count 11, and to eight months on count 12, for a total of eight years eight months in prison. The court imposed concurrent sentences on the remaining counts.*fn4
III. Counts 1 to 7, preventing an executive officer from performing an official duty under section 69.
(A) Sufficiency of the evidence.
Iboa contends that his convictions under section 69 violate his First Amendment right to free speech because there was insufficient evidence anything he said was a "serious expression of an intention to commit an act which would result in bodily harm" to the firefighters and deputies. We disagree.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced ...